By: Serina Woo
Question & Rationale: What constitutes as police misconduct under basic law in Hong Kong? To what extent can the police be prosecuted for misconduct in Hong Kong protests? I am personally connected to this topic and am really interested in finding out more about it. My inquiry is based on the legal significance of police brutality, through which I examine the bindingness of legal principles, and attempt to identify gaps, opportunities and ambiguities in the law.
Disclaimer: Please note that this is an analysis from the issue pertaining to my perspective on the matter.
According to the Police Force Ordinance, a regulatory document by which Hong Kong police officers should abide by, officers should exercise a high degree of restraint when dealing with the public and it clearly states that the violation of police regulations constitutes as police.[1] So far, not one police officer accused of police misconduct has been charged or prosecuted over protest-related actions.[2] The Complaints Against Police Office (CAPO) is responsible for handling complaints concerning police misconduct, however, no information has been released from the Hong Kong government on the degree of prosecution police officers will receive. [3]
There are in total three issues that I discovered. 1. The term “police misconduct” is vaguely defined. 2. There is a lack of transparency of police guidelines. 3. The Independent Police Complaints Council’s (IPCC) is inadequate in responding to complaints
- Vaguely defined term of “police misconduct” creates environment for government manipulation
A police representative told the Washington Post that the Hong Kong Police Force has always complied with stringent protocols when patrolling protests and “regulations are “benchmarked” against international standards.[1] However, there currently isn’t a definite definition for the term “police misconduct” in the Police Force Ordinance, and the vagueness of the term can easily be misunderstood and misinterpreted by the general public. Even worse, misused by law enforcers when evaluating whether one is guilty of police misconduct.[2] To support this argument, The Nation accuses Hong Kong Police Commissioner Stephen Lo Wai Chung for publicly favoring the police officers by justifying their violent actions while intensifying public discontent by calling the clash “a riot”.[3] The implications of a vaguely defined term not only leads to societal frustration, but also potential freeing of guilty law enforcers. Nonetheless, the missing definition of “police misconduct” allows punishment to be unaccounted for in the Police Force Ordinance.[4] In a confrontation between police and protesters, police shot an 18-year-old boy in the chest at close range with their firearm. Reportedly, the police officer was not penalized but the student was charged with rioting and assault.[5] Setting aside potential media bias and misinformation, the lack of transparency fostered anger amongst citizens. From a police officer’s point of view, the vague term increases the vulnerability of their job as well. On one hand, they could be falsely charged of police misconduct. On the other, it is easier for them to avoid liability. A commonly used argument of police officers for police brutality is self-defense. Since the term of police misconduct is defined vaguely, police are allowed to avoid responsibility. Such actions jeopardizes the reputation of the entire Hong Kong police force. Therefore, Hong Kong law enforcers should amend the Police Force Ordinance Sec 6 to include a clear definition of the term “police misconduct”, as well, include reasonable punishments for different instances.
2. Lack of transparency in police guidelines
“Violating police regulations” is the definition of police misconduct in the Police Force Ordinance, widely used by law enforcers.[1] However, according to the Washington Post, the law-enforcement manuals containing police guidelines and training manuals was not disclosed to the public officially until December 24, 2019. Only after the “leak” of part of the manual.[2] This lack of transparency of the manual allowed the government and law enforcers to justify the police officer’s violations of police on their own means, neglecting the undisclosed manual. A viral video on social media shows a 57 year-old retired mechanics instructor who was within 12 yards of a police line outside government offices. He was pleading for police to stop provoking protesters.[3] During which, he began yelling obscenities.[4] An officer aimed what looked like a gun at him. Soon identified by weapon experts that it was likely loaded with balls containing pepper spray.[5] The old man fell on the ground and had to be carried away from the public. Yet, the police’s spokesperson claimed police officers acted with restraint.[6] From which we could understand, the police saw firing shots at him was the only way to restrain him. Chapter 29 of the leaked Police General Orders details protocols around the use of force, mentioning that the only time officers are allowed to use “deadly force” is when there is “assault intended to cause death or serious bodily injury”, as well, officers should be “accountable to their own actions.”[7] Applying this clause to the abovementioned incident, verbal threats should not be constituted as an intent to “cause death or serious bodily injury.” According to the manual, officers should’ve responded with verbal reinforcements or verbal.[8] The Hong Kong government has not obliged to their international legal obligations to investigate alleged abusive police, and fails to demonstrate commitment to human rights and the rule of law. The implications of the lack of transparency highlights the need of such to maintain public order and to keep the public informed.
3. Independent Police Complaints Council’s (IPCC) inadequacy in responding to complaints
There are currently two underlying problems with the IPCC. First, the complaints council’s panel is mostly made up of conservative and pro-government figures. The chairman of IPCC, Dr. Anthony Francis Neoh is appointed by Hong Kong’s chief executive Carrie Lam, who is appointed by the Chinese government.[1] Dr. Neoh’s political stance is therefore mainly conservative and pro-government.[2] As well, the vice-chairmen of the IPCC are mostly pro-government.[3] Therefore, such politically biased leaders compromises the independent investigations of the complaints submitted. Second, the IPCC is inadequate in monitoring independent investigations launched by citizens because of their lack of legal power and investigation capability.[4] According to the Nation, between 2011 and 2018, there had been approximately 2119 complaints about police beatings submitted to the IPCC, the IPCC had only confirmed 2 of the cases.[5] This shows the incapability and inefficiency of the IPCC on dealing with complaints. Since the beginning of pro-democracy protests, it was reported by the South China Morning Post that the Hong Kong police had received 1,200 complaints regarding their behavior during protests.[6] However, according to the IPCC official website, in the most recent publication of 2018-19, there were no published complaints concerning police misconduct or police brutality.[7] In order to fully account to all complaints, the Hong Kong government would have to alter its complaint review system by granting the committee more legal power for investigation and interrogation, which ensuring that leaders’ decisions are not threatened by power.[8]
Clearly, this legal issue currently present in Hong Kong is allowing accused police officers escape their legal responsibilities. Such discontent among citizens have taken a toll on Hong Kong’s economy as well, over reputation in the international community. The strains between police and citizens will forever by engraved in the history of Hong Kong politics. The threat placed on the civil rights of Hong Kong citizens is furthered by their vulnerable position during protests towards unregulated police force.
Sources:
- Cap. 232 Police Force Ordinance. (2018, April 26). Retrieved from https://www.elegislation.gov.hk/hk/cap232?pmc=0&SEARCH_WITHIN_CAP_TXT=restrain&xpid=ID_1438402864250_002&m=0&pm=1
- Mahtani, S. (2019, December 24). In Hong Kong crackdown, police repeatedly broke their own rules – and faced no consequences. Retrieved from https://www.washingtonpost.com/graphics/2019/world/hong-kong-protests-excessive-force/
- Ho, R. (2019, November 27). The Hong Kongers Building a Case Against the Police. Retrieved from https://www.thenation.com/article/archive/hong-kong-police-brutality/
- Sum, L.-kei. (2019, November 27). Police receive 1,200 complaints over handling of Hong Kong protests. Retrieved from https://www.scmp.com/news/hong-kong/law-and-crime/article/3039603/hong-kong-police-receive-1200-complaints-over-handling
- Complaints Against Police Office, A Guide For Complaints. (2015, September). Retrieved from https://www.police.gov.hk/info/doc/pol/en/Pol_679.pdf
- Complaint Cases and Recommended Improvements. (2018). Retrieved from https://www.ipcc.gov.hk/en/home/index.html
- Hernández, J. C. et al (2019, June 30). Did Hong Kong Police Abuse Protesters? What Videos Show. Retrieved from https://www.nytimes.com/2019/06/30/world/asia/did-hong-kong-police-abuse-protesters-what-videos-show.html
- Kuo, L. (2019, December 11). Foreign experts quit Hong Kong police brutality inquiry over lack of powers. Retrieved from https://www.theguardian.com/world/2019/dec/11/foreign-experts-quit-hong-kong-police-brutality-inquiry-over-lack-of-powers