HONG KONG HUMAN RIGHTS MONITOR
POLICE INTERROGATION PRACTICES AND COMPLAINTS PROCEDURES
- 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 :-
||the confession evidence is fabricated;
||the defendant spoke, wrote or signed the confession because of improper
threats, inducements, force or oppression;
||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
- 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
- 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.
- 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.
- 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 ".
- 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
- 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.
- 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.
- 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.
- We therefore call on the Hong Kong Government to make the following
changes to police procedures:-
||speed up the introduction of video recording of police interviews;
||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
||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;
||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;
||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;
||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;
||place the operation of the IPCC on a statutory basis with sufficient
powers to enable it to operate as an effec- tive review body.
- 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.
- 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.
- There is no source of trained investigators in Hong Kong outside
the Royal Hong Kong Police Force.
- 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.
- 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.
- The recruitment of police officers from overseas would prove difficult
and in any case would take time.
- 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.
- 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.
- 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. "
- 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 ".
- 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
Download the paper
1996 (c) Hong Kong Human Rights Monitor