Hong Kong High Court rules lack of independent police complaints mechanism, Police failure to wear unique identification numbers, violate Hong Kong Bill of Rights

Hong Kong Journalists Association v Commissioner of Police [2020] HKCFI 2882

The Court of First Instance in Hong Kong has allowed a judicial review application brought by the Hong Kong Journalists Association (“HKJA”). The application challenged the lack of independence in the mechanism in place for investigating serious complaints against police officers, and the failure of officers deployed on anti-riot duties to wear unique, clearly visible identification numbers.

The HKJA brought the proceedings following widespread complaints by journalists alleging police misconduct and interference with press activities in the course of OPERATION TIDERIDER, launched by the Hong Kong Police Force (“HKPF”) in response to large-scale protests and public order disturbances beginning in June 2019.

The Court of First Instance (the Hon Mr Justice Anderson Chow), ruling for the HKJA, held that the two-tier mechanism for investigating complaints against police officers failed to meet the requirements of Article 3 of the Hong Kong Bill of Rights. Article 3 outlaws cruel, inhuman or degrading treatment or punishment, and imposes a positive duty on the Government to maintain an independent and effective system for investigating arguable complaints of ill-treatment by police. The Court found that the police unit tasked with handling misconduct cases, the Complaints Against the Police Office (“CAPO”), was staffed by police officers who rotated in and out of regular police duties, and that the unit lacked formal and practical independence from the force it was charged with investigating. Although cases could be reviewed by the Independent Police Complaints Council (“IPCC”), the IPCC lacked investigative powers of its own and was reliant on CAPO to investigate cases. The scheme failed to meet the positive obligation in Article 3.

The Court gave 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.

Chow J further held that the Commissioner of Police had acted unlawfully by deploying masked police officers on anti-riot duties without clearly visible, unique identifying markings on their uniforms. This too violated the positive duty in Article 3 of the Bill of Rights. The inability of potential complainants, witnesses or the press to identify officers accused of wrongdoing would frustrate any investigation at the outset, and had the propensity to foster a culture of impunity.

The Court gave a further declaration that:

• The failure of the Commissioner of Police 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.

This case has been widely reported in the local and international press, including The Guardian, Reuters, South China Morning Post, Hong Kong Free Press, The Standard, Apple Daily, and Ming Pao.

Tim Parker acted pro bono for the Hong Kong Journalists Association.