How Hong Kong Police Are Held Accountable

Hong Kong Police Force (HKPF) is the largest disciplined service under the Security Bureau of Hong Kong. It is the World’s second and Asia’s first police agency to operate with a modern policing system. [1] On July 2009, news reported that a frontline officer used private vehicles as barricades to halt illegal car racers in Kwun Tong which result in several vehicles damaged and a taxi driver hurt. [2] This action had shocked the whole society. The members of Legislative Council urged the former Police Commissioner Tang King-shing to process investigation and to give a detailed explanation to public to such incident. In our normal impression on HKPF, all police officers should be fully well-trained, tactful and capable to control and handle all situations calmly. How could the officer be so irrational by pulling citizen’s life and property in as roadblock to stop illegal car-racing? According to what, in terms of operation principles and rules that the officer carried out this decision? Last but not least, as the investigation is proceeded by one of the department of the police authority, how does the authority ensure the public receive a just investigation? Hong Kong people are known for unconcerned with government politics and social issues. The occurrence has raised the public’s deliberation of the police accountability and the next question comes to: who is policing the police?

Hong Kong Police Force has undergone a drastic transformation from the sovereign of British colonial to PRC. Prior to the 1960s, there was a common local saying that summed up how the public impression on the police in Hong Kong: ‘the good boy does not join the police’, police were named ‘rascals with licence’. [3] Police misconduct, such as corruption and abuse power were common at that time. Notwithstanding the public universally know the situation, still generally accepted as a part of Hong Kong Police culture and practice. The local rare complained against police. Police misconduct was like a social time bomb. In the late 1980s and early 1990s, there was an essential change of the political-economy of Hong Kong, such as the sign up of the Joint-Declaration and the last governor Chris Patten carried out a fundamental political and legal reform in Hong Kong which set significance to the reorientation transformation of Hong Kong Police in decades. In July 1996, the introduction of an Independent Police Complaints Council Bill (the Bill) turned the Independent Police Complaints Council (IPCC) into a statutory monitoring body of police misconduct with enhanced of its effectiveness, credibility, legitimacy and oversight power.

The Functions the Police perform in the society

Polices are the gatekeepers of the criminal justice system and the primary command agent in upholding stability, restoring order and control problem in the society. At the same time, police officers are entitled the criminal law powers by the Government and the law as a crime fighter to execute the duty of suppression of crime and the enforcement of compliance law. According to the Hong Kong Police Force regarding to police power to stop and search, police officer has the general power to question any person about a crime or offence, stop and question any person behaving suspiciously, and may conduct a thorough search for items relevant to that offence. Section 49 of Public order ordinance, stating “…the member or officer may require any person to produce proof of his identity for inspection, and any person who fails to comply with any such requirement commits an offence and is liable on summary conviction to a fine of $10000 and to imprisonment for 6 months.”

Apart from this, the police hold the legitimate power to maintain law and order and perform as a peace keeper in the society. In some circumstances, police may intervene in the situation that may threaten to public order by enforcing the rule of law to preserve the safety and security of environment.

Police officers are a part of community. They are not just investigation of a crime or processing of a criminal. They also share the problems with public and provide public an honest, efficient, effective police service, such as help elderly to cross the road or guiding direction for tourist. When a car crash occurs, the frontline officers may enact the role of mediator, to give advice to the driver and the injured party, and shall give the injured any kind of assistance whether medical or social support is needed. Introducing the responsibilities of preventing crime to public is also one of the duties of the police. Through television programmes, such as “Police Magazine” and “Police Report” to provide the public the up-to-dated crime trends and to appeal for information that will help officers in investigations to strengthen police-citizen partnership. From that we can see ‘preventing and detecting crime’ are crime fighting while the rest of the duties interest with maintaining stability and providing service.

The function the police enact is situational and regional. Their actions are various in the accordance of locations, for example, the more emphasis for New Territories North District on deal with drug abuse issue.

Police power

Hong Kong is not a democratically elected government. The police are a department of government. The scope of police power in Hong Kong is broad and extensive. It has been defined as non-negotiable force to deal with situational contingencies. All powers that are given to the police to perform many duties, like promote the order, health, safety, moral and welfare of the people. They are provided with powerful tools base on the grounds that they are necessary for controlling crime and maintaining order. Nevertheless, these powers can be used to control political demur and crime. The politicians may use police power to exert control in the society since Hong Kong Police Force performs a political function and policing as a social institution. The public concern that the police power may be used as a suppression of political dissent to arrest the innocent along with the guilty in their zeal to control crime. So how can we see that whether the police use their power fairly and justly? A clear written policy practiced by Police department, specifying when the use of force for officers is appropriate and also requires officers to complete a written report after each use of force incident. Each written report reviewed by supervisors can be the best in policing the police power. However, for example in Section 50-59 of Police Force Ordinance and the criminal law, claimed that ‘every police officer has the power to question any person about a crime or offence.’ here’s the question, is a person absolutely required to answer the police? What if the person refuses to assist the police with their enquiries? Would he/she under arrest?

Police Accountability

Police accountability has never been a simple topic to put on discussion. It is a multiple, complex and delicate notion. Walker (2005) indicates that police accountability can be illustrated with two dimensions. On the one hand refers “holding law enforcement agencies accountable for the basic services they deliver: crime control, order maintenance, miscellaneous services to people and communities” and second points to “holding individual officers accountable for how they treat individual citizens, particular with regard to the use of force, equal treatment of all groups, and respect for the dignity of individuals.” [4] In the crime control model, the Hong Kong Police Force is accountable for the Government, to protect the society by maintaining law and order with an effective enforcement of law. While under due process model, the Force is accountable for community, primarily on the protection of individual’s right, liberty and freedom and serves the community. The core operating principle of police accountability is that the police should responsible for his/her behaviour. This is not only accountable for self, the officers are also expected to hold accountable for external agencies, process and/or standards, such as someone (the President), some institutions (government or authority), some process (law), and/or to some standard (professional). Individual value and belief of individual police officers determine how they see their role and the way they carry out the duties in which have influential power on the accountability.

In that condition, who is policing the police? Fundamentally, there are five mechanisms or strategies to control police misconduct: administrative control, e.g. the Independent Commission Against Corruption (ICAC), Complaints Against Police Office (CAPO) and Independent Police Complaints Council (IPCC); institutionalized political control, e.g. member of Legislative brings up questions to the police investigation; informal political control, e.g. political parties, interested groups and the press; legal control, i.e. international convention, domestic legislation, administrative regulations, criminal prosecution and civil proceedings; lastly, professional/peer control, e.g. professional culture and peer pressure.

In administrative control, Hong Kong adopts a two-tier police complaints system. CAPO investigates all complaints against the Police. After CAPO has conducted the investigation, it will submit the investigation report, together with relevant files, documents and materials, to IPCC for scrutiny. [5] CAPO is an administrative constituent reporting to the Commissioner of Police through the chain of command. It is not a statutory body with independent powers, like the IPCC. IPCC members can observing CAPO investigations first hand, comment on the proposed disciplinary action, for example whether it is equivalence with the gravity of the offence, make suggestions to improve upon police internal policy and procedures to the Commissioner of Police, and if need be to the Chief Executive. Yet the IPCC is restricted to the function of reviewing and monitoring (i.e. performing a civilian review role), the field of investigation and discipline (i.e. no complaint investigation/adjudication) are refrained. We should note that there is no such independent investing body established. Commissioner of Police is still the ultimate authority determine whether, to what extent, and how CAPO should operate, such as what kind of cases are to be investigated by CAPO. Plus, the Commissioner has full discretion in imposing disciplinary action on police officers found guilty of disciplinary transgressions regarding the complaint.

Is the IPCC effective in controlling police abuses and decrease the public complaints?

The Suggestions raised by IPCC shows that the increasing number from 4,341cases in 2007, to 4,523 cases in 2008 to 5,055cases in 2009. On the one hand, this implies that there is a rise in public awareness of their legal rights and the application of proactive pattern on controlling crime and upholding law and order in society leads the police are more aggressive in their investigation, like increased identity checks, stop and search and roadblocks. It appears that the IPCC is so far an active and effective agency in policing the police.

In the lights of Article 73 of the Basic Law, member of the Legislative Council (Legco) is empowered to raise questions on the work of the Government, to debate any issue concerning public interests and to receive and to handle complaints from Hong Kong residents. [6] In which that infers the Legco can comments on the policy, practices, procedure and individual officers’ action the HKPF. Legco members and political parties play an important role in holding the police accountable for their overall performance including dereliction of duty and misconduct. Both have been always expressing the discontent with the police abusing its powers, suppressing freedom of speech and lacking independent accountability on many occasions, especially stress on criticize the Government and the police for confining the public’s right to gather peacefully to petition the government, for example, Democratic Party released a report – The Submission of the Democratic Party to the UN Human Rights Committee in Respect of Human Rights in Hong Kong under the International Covenant of Civil and Political Rights, judging the police for inhibiting the rights of people for assembly. [7] Publishing the report enable citizen to recognize the human right they should have in society and the report can be deem as an public audit of government and police performance.

Other organizations, such as the Hong Kong Bar Association and the Hong Kong Journalists Association (HKJA) will voice out their objections to protect their professional merits and basis oppose against the misuse of law by the police, for instance, the journal about “Peaceful Assembly and Obstruction of public places” posted at The Bar’s Column. [8]

On Jan 2011, The Journalist post an article about the way that the police influenced the free flow of information, “…the police should revamp their information dissemination mechanism by allowing journalists free access to spot news information after the caller’s personal data have been deleted. This will also alleviate skepticisms about “selective’’ dissemination of news by the police.” [9] The HKJA suspects that the police are trying to tighten and restrict the freedom of the press.

Besides the informal political control, Hong Kong police are subjected to four ways legal control: international conventions, fundamental laws, domestic laws and administrative regulations. Rules of law provide uniform justice, but it may create the situation that one rule is set to apply all kind of people and various circumstances. Rules should be effective and must be consistent. On the contrary, the practice that the police perform duties is a discretionary exercise of best judgement under the circumstances. However, it is also indirect violating the principle of rule of law. Law does not direct how the police should go about doing their responsibilities and what they should enact. Most likely the officers are left to make decision depends on his/her own experience to deal with the situation.

Peer support is vital in every organization. Practically the police is a unit which very concern on teamwork and solidarity. As most of the internal information is in confidential and the policy inhibits officers to tell others. Public do not understand much the real crime situation that the police officers are facing every day. Thus, colleagues are the main back-up in most part and this is a good reason for officers to support each other against outsiders and share certain dominant value. If a police officers is a observing discipline and obeying the law to the law while his team are not so just in law enforcement, should he follow his own conscience and a higher morality or be in cahoots?

In Hong Kong we have IPCC and CAPO to make sure that complaints against the police are dealt with effectively. But how is the efficiency and effectiveness of CAPO and IPCC in policing the police? The IPCC of UK develops the principle that complaints system performance should adopt “…which is evidence based rather than intuitive; enable accurate comparisons to be made about the performance of each constituent part of the complaints system; increase clarity for the police service and the IPCC on expected performance and reduce the burden of reporting; facilitate the identification and sharing of best practice across the system; give access to timely, relevant, consistent performance data that supports decision making among those responsible for the complaints system; demonstrate increased accountability to stakeholders and the public through publication of performance data.”

We should note no independent body established in Hong Kong for investing complaints of the police. The existence of IPCC and CAPO may able to help the public to manage or supervise the police law enforcement into a particular complaint. Since police abuse of power and the accountability associate with many aspects, such as the political transformation of the Government, legal, organizational, cultural, social structural, individual psychological and situational factors. IPCC and CAPO both never be able to wipe out police misconduct.