Court of First Instance rules that system of identification of police officers in breach of Bill of Rights

This judgment is now reported in [2020] 5 HKLRD 653.

On 19 November 2020, the Court of First Instance handed down its judgment as to the legality of the system of identification of police officers and the mechanism of handling complaints against police officers.

Under Article 3 of the Hong Kong Bill of Rights (“BOR 3”), no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.   The Court further recongised that there is a procedural obligation on the part of a government, arising from Article 7 of the International Covenant on Civil and Political Rights (“ICCPR 7”) to investigate promptly and impartially any suspected case of breach of ICCPR 7 by State agents or bodies, including police officers, so as to ensure that the rights thereunder are fully and effectively protected.  The same applies to BOR 3 (at paragraph 75).

The Court held that having regard to the existence of numerous cases of arguable breach of BOR 3 as noted above, the Government has a positive duty to put in place an adequate system to effectively investigate those cases so that the rights under BOR 3 are fully protected (at paragraph 92).

The Court further held that the current practice of the Commissioner requiring police officers (other than officers of the Special Tactical Contingent (“STC”, aka the “Raptors”) to wear and display the Call-Signs and STC officers to wear and display the Alpha IDs when deployed in Operation TIDERIDER fails to meet the standard of effectiveness of investigation required under the procedural limb of BOR 3 (at paragraph 99).

It was further held that the two-tier mechanism for handling complaints (i.e. the CAPO and IPCC) fails to meet the requirement of independent investigation under the procedural limb of BOR 3 (at paragraph 103).

In contrast, the Court rejected the arguments that under common law, police officers when carrying out non-covert duties are required to wear or display any unique identification numbers or marks on their uniform (at paragraph 117).  The Court also held that the Commissioner did not misinterpret or misapplied the Police General Order or the Police Force Ordinance (at paragraphs 104-116).

Ernest CY Ng acted for the Applicants in HCAL 1753/2019 (with Mr. Jason Ko), instructed by Ho, Tse, Wai & Partners.

The full judgment is available here.