CONSTITUTIONAL & ADMINISTRATIVE LAW – High Court rules police failure to display unique identification, and lack of independent police complaints mechanism, violate Hong Kong Bill of Rights

The Court of First Instance has held in a series of judicial review cases that the failure of police officers to display unique identification markings during anti-extradition bill protest operations contravened the Hong Kong Bill of Rights. The Court further held that the arrangements in place for investigating complaints against police officers, involving the Complaints Against the Police Office (“CAPO”) and the Independent Police Complaints Council (“IPCC”), are not sufficiently independent and fail to meet constitutional requirements.

DCC Members Hectar Pun SC, Tim Parker, Jeffrey Tam, Anson Wong Yu Yat, Geoffrey Yeung, Andrew Lau and Jason Ko acted for the various Applicants in these judicial review applications which were heard together.

The Issues

The judicial review applications relate to the conduct of police officers in the course of ‘OPERATION TIDERIDER’, launched in response to the large scale protests following the now-withdrawn Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019.

In all of five cases (HCAL 1747, 1753 2671, 2703 and 2915 of 2019), the Applicants challenged the deployment by the Commissioner of Police of officers without clearly visible, unique identity markings – particularly in relation to officers placed on anti-riot duty and “Special Tactical Contingent” officers (“STC”, commonly known as “速龍小隊” or “Raptors”). The Applicants contended that this practice violated the Government’s positive duty, pursuant to Article 3 of the Hong Kong Bill of Rights (“BOR 3”), to ensure that allegations of misconduct police officers could be effectively investigated, leaving officers potentially unaccountable for misconduct and fostering a culture of impunity (“the Police Identification Issue”).

In HCAL 2915 of 2019, the Hong Kong Journalists Association (“HKJA”) further challenged the constitutionality of the mechanism in place for investigating complaints of misconduct against police officers. HKJA contended that CAPO – whose officers rotate in and out of regular police duties – lacked formal and practical independence from the Police Force it was charged with investigating, and that the IPCC, while independent, lacked investigative powers of its own and was reliant on CAPO to investigate cases (“the Complaints Mechanism Issue”).

The Identification Issue

The Court of First Instance (the Honourable Mr Justice Chow) upheld both sets of challenges.

On the issue of police identification, Chow J found that the Government had a positive obligation to prevent, investigate and punish acts of torture and cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“BOR 3”). The deployment of masked police officers in the field without unique and clearly visible identifying markings was incompatible with that duty since this would frustrate legitimate attempts to investigate any allegation of police misconduct. The Court held that:

• The “Alpha ID” and “Callsign” systems adopted by the police were flawed because neither was unique to one police officer;

• There was evidence that some officers had deliberately obscured the Alpha ID and Callsign identifications issued to them, and there was no evidence that adequate measures had been put in place to prevent such practices; and

• The fact that the Alpha ID was only attached to the back STC officers’ helmets substantially impaired its effectiveness as a means of identification.

The Court accordingly declared that:

“The failure of the Commissioner to establish and maintain an effective system to ensure that every police officer deployed in carrying out non-covert duties in Operation TIDERIDER wears and prominently displays an identification number or mark which is unique to that officer violates Article 3 of the Hong Kong Bill of Rights”.

The Complaints Mechanism Issue

In the HKJA case, the Court further found that the Government was under a positive obligation, as part of its obligation to prevent torture and cruel treatment, to maintain an effective and independent system for investigating complaints of ill-treatment by police officers. The Court found that the two-tier mechanism for handling complaints against police officers failed to provide a sufficient safeguard which satisfies the requirements of effectiveness and independence:

• CAPO, the Court held, was part of, rather than institutionally independent from, the Hong Kong Police Force. CAPO personnel were not segregated from the rest of the force, and were career police officers rotated in and out every two to three years; and

• the IPCC lacked investigative powers of its own, and did not have the power to investigate cases itself or overturn the decisions of CAPO.

The Court granted a declaration that:

“The Government of the HKSAR is under a duty, pursuant to Article 3 of the Hong Kong Bill of Rights, to establish and maintain an independent mechanism capable of conducting effective investigation into complaints of suspected ill-treatment by police officers in contravention of Article 3 of the Hong Kong Bill of Rights, and that the existing complaints mechanism involving the Complaints Against the Police Office, with oversight by the Independent Police Complaints Council, is inadequate to discharge this obligation.”

This case has been widely reported in the local and international press, including the SCMP, The Standard, Apple Daily, Ming Pao, The Guardian and Reuters.

Representation:

Hectar Pun SC and Anson Wong Yu Yat acted for the Applicant in Chan Kung Shun and Others v. Commissioner of Police (19/11/2020, HCAL 2703/2019) [2020] HKCFI 2882.

Jeffrey Tam and Andrew Lau (led by Mr Martin Lee SC) acted for the Applicants in 陳基裘 v. 香港政府警務處 (19/11/2020, HCAL1747/2019) [2020] HKCFI 2882 and in Yeung Tsz Chun v. Commissioner of Police (19/11/2020, HCAL 2671/2019) [2020] HKCFI 2882.

Tim Parker and Geoffrey Yeung  (led by Mr Philip Dykes SC  and Mr Robert Pang SC, and with Mr Albert NB Wong) acted for the Applicant in The Hong Kong Journalists Association v. The Commissioner of Police and Another (19/11/2020, HCAL 2915/2019) [2020] HKCFI 2882.

Jason Ko (with Mr Ernest CY Ng) acted for the Applicant in 郭卓堅及另一人 v. 保安局局長李家超及另一人 (19/11/2020, HCAL1753/2019) [2020] HKCFI 2882.

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	Hectar Pun SC Hectar was called to the Bar in 1995 and appointed Senior Counsel in 2015. His practice spans many areas including constitutional and administrative law, human rights law, immigration law, criminal law, land law, company law and commercial law. He appears regularly on behalf of applicants in major judicial review proceedings. Find a list of Hectar’s selected cases from his biography.
	Tim Parker Tim was called to the Bar in 2009 and has established a strong reputation for his advocacy and advisory work, which encompasses the areas of public international law, constitutional and administrative law, competition, and civil/commercial matters. He is ranked as “one of the go to Counsel” by Chambers & Partners Global. Tim acted for The German Swiss International School Association Ltd in successfully obtaining the Court’s declaration that the German language restrictions contained in its Articles of Association infringe the Race Discrimination Ordinance (Cap. 602). Tim practises both in Hong Kong and the United Kingdom, where he is a member of Blackstone Chambers.
	Jeffrey Tam Since being called in 2009, Jeffrey has established a solid practice in public law, having been involved in a number of landmark judicial review cases, including Kwok Wing Hang & Others v Chief Executive in Council & Others, HCAL 2945/2019, CACV 542 & 583/2019 which concerns the ban on face covering. Recently, Jeffrey appeared as junior Counsel for the 1st and 2nd Applicants in the judicial review of the Small House Policy at both the Court of First Instance and Court of Appeal.
	Anson Wong Yu Yat Anson has developed a broad civil practice with an emphasis on public law (such as Leung Kwok Hung v Secretary for Justice [2020] 2 HKLRD 771; [2020] 1 HKLRD 1, which challenged the constitutionality of the Emergency Regulations Ordinance and the “anti-mask” law), intellectual property litigations and competition law matters. Beyond public law, Anson appeared in one of the first two enforcement actions before the Competition Tribunal, arguing issues relating to the burden and standard of proof as well as the proper approach for determining pecuniary penalties (see Competition Commission v W Hing Construction Co Ltd [2019] 3 HKLRD 46 & [2020] 2 HKLRD 1229).
	Geoffrey Yeung Geoffrey is a Bar Scholar and Rhodes Scholar who was called to the Bar in 2018. He has a broad practice in general civil and commercial litigation, as well as in constitutional and administrative law (including licensing matters), land law (including adverse possession), insolvency, companies, probate, discrimination law, criminal law, and conflict of laws. Geoffrey appeared for the Appellant in “AH” v Director of Immigration (FAMV 3/2020; FACV 2/2020) , where the Court of Final Appeal allowed the appeal which concerned the need for out-of-time judicial review applicants to obtain leave to appeal from the Court of First Instance.
	Andrew Lau Andrew is a Charles Ching Scholar who joined Chambers in 2018. His experience encompasses a broad range of areas such as commercial disputes, company/insolvency, construction, equity/trusts, probate, personal injuries and public law. Andrew recently resisted an application for leave to appeal in the Court of Final Appeal in the election petition Lau Siu Lai v Kwok Wai Fun, Franco (Returning Officer for the Kowloon West Geographical Constituency) and Another [2020] HKCFA 31. Court work aside, Andrew teaches administrative law at the Chinese University of Hong Kong and media law at the Hong Kong Baptist University.
	Jason Ko Jason joined Chambers in 2019 and is developing a broad civil practice and accepts instructions in all areas of Chambers’ work. A seasoned mooter during his studies, Jason has represented the University of Hong Kong in the Philip C. Jessup International Law Moot Court Competition (2018), where his team won the Hong Kong Champion and he was ranked among the top 100 oralists internationally. He recently appeared for the successful Plaintiff (led by Richard Yip) in Kyocera Corporation (the successor of Kyocera Optec Co Ltd) v W Haking Enterprises Limited and W Haking Industries Limited [2020] HKCA 817.