3 Statutory Powers of the Hong Kong Police Force





3.I Basic Information

3.1 The Hong Kong Police Force (“HKPF”), subordinate to the Security Bureau of the HKSAR Government, is the largest government department (21% of all civil servants by end-2017), as well as the largest disciplined service in Hong Kong. The CP is one of the principal officials of the government, and is nominated by the Chief Executive (“CE”) and appointed by the State Council of the People's Republic of China. The appointment is published in the Government Gazette. According to the statistics of the United Nations Office on Drugs and Crime in 2013, Hong Kong had an average of 4,500 police officers per million people, one of the highest police-to-civilian ratio around the world. Its financial expenditure increased significantly by about 30% from HK$14.6 billion in 2013 to HK$18.8 billion in 2018. The HKPF states that its vision is to ensure "Hong Kong remains one of the safest and most stable societies in the world", and their common purpose is stated as follows:-

Upholding the rule of law

Maintaining law and order

Preventing and detecting crime

Safeguarding and protecting life and property

Working in partnership with the community and other agencies

Striving for excellence in all that we do

Maintaining public confidence in the Force





3.2 Police officers, as civil servants, are always expected to serve the Hong Kong citizens. One can easily see that the common purpose stipulated by the HKPF is rather people-based, noting three out of ten in the Chinese version are directly linked up to the term "citizens" (市民). Such high standard likewise reflects the fact that the top management, when formulating these guidelines, was fully aware of the importance of discipline given tremendous enforcement power of the HKPF. (Note that the first common purpose is to require its officers to uphold the rule of law, and the sixth is to strive for excellence). It will be detrimental to the society at large if those who go astray and intentionally break the law are the law enforcement officers themselves. In addition, the HKPF should have its priorities set in line with the interests of citizens. Should the police act against its policing philosophy and let the relationship with the public worsen, the common purpose, no matter how noble it looks, will only become fragile and empty words from the public’s point of view.





3.3 Values of the HKPF are listed as follows:-

Integrity and Honesty

Respect for the rights of members of the public and of the Force

Fairness, impartiality and compassion in all our dealings

Acceptance of responsibility and accountability

Professionalism

Dedication to quality service and continuous improvement

Responsiveness to change

Effective communication both within and outwith the Force





3.4 In June 2001, the discussion paper released by the Panel on Security of the Legislative Council clearly stated that the HKPF “attaches great importance to the character and integrity of police officers”. The HKPF claims that it “has all along sought to embed a professional ethic as well as integrity at the core of its policing philosophy. All members of the Force are required to be fully aware of and observe such philosophy in order to maintain a high level of personal integrity. The HKPF has implemented a series of IM (integrity management) measures over the years to ensure the integrity of all police officers, and formulated in early 2009 the Integrated IM Framework”.





3.5 In December 2009, the HKPF published a set of behavioral guidelines for its officers in order to further promote the values of “integrity and honesty”. Police officers are to follow the said guidelines at all times, regardless of whether they are on duty or not. Police officers are encouraged to take into account the below factors prior to any action: (i) whether the action or behavior is lawful; (ii) whether it is in accordance with the values of the HKPF; (iii) whether it will undermine public confidence in the HKPF, and (iv) whether it can be justified if the police officer is called upon to do so. Although these guidelines are not legally binding, and officers who violate any of the guidelines do not necessarily face any internal investigation or disciplinary actions, the guidelines could, and would, be used as a reference point for the public to assess the conduct of individual police officers. Given that police officers are law enforcement officers, conduct that deviates from the established guidelines and actions that display hostility to the general public are enough to stir up social unrest. If the government decides to turn a blind eye to these situations and not remedy them in time, or even fabricate excuses for the officers’ misconduct, violations of the guidelines will eventually become a normal practice of the HKPF. Not only will it sabotage the long-established image of the HKPF, the authority and legitimacy of the HKPF will also be heavily undermined, thereby turning Hong Kong into a police state eventually.





3.II Relevant Laws and Regulations

3.II.1 Fundamental Rights and Freedoms

3.6 According to the Basic Law, Hong Kong citizens enjoy a range of fundamental rights and freedoms. Some of these rights and freedoms are particularly relevant to the protection of citizen’s rights against unlawful exercise of police powers:





3.7 Article 27 of the Basic Law states that:

"Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration; and the right and freedom to form and join trade unions, and to strike."





3.8 Article 28 of the Basic Law states that:

"The freedom of the person of Hong Kong residents shall be inviolable.





No Hong Kong resident shall be subjected to arbitrary or unlawful arrest, detention or imprisonment. Arbitrary or unlawful search of the body of any resident or deprivation or restriction of the freedom of the person shall be prohibited. Torture of any resident or arbitrary or unlawful deprivation of the life of any resident shall be prohibited."





3.9 Article 29 of the Basic Law states that:

"The homes and other premises of Hong Kong residents shall be inviolable. Arbitrary or unlawful search of, or intrusion into, a resident's home or other premises shall be prohibited."





3.10 These rights and freedoms are however not absolute. In other words, the law may validly create restrictions limiting such rights (i.e. the government or the police may in certain instances restrict the exercise of such rights). In general, courts will apply a “proportionality test” (see Hysan Development Co Ltd v Town Planning Board) to see whether such a restriction:

pursues a legitimate aim; is rationally connected to that legitimate aim; is no more than is reasonably necessary to accomplish that legitimate aim; and strikes a fair balance between the general interest of the community and the rights of the individual encroached upon.





If any restriction on such rights cannot pass the “proportionality test”, such a restriction will be unconstitutional (i.e. unlawful).

3.II.2 Police Duties

3.11 Section 10 of the Police Force Ordinance (“PFO”) (Cap. 232) sets out the duties of the police. They are:

preserving the public peace; preventing and detecting crimes and offences; preventing injury to life and property; apprehending all persons whom it is lawful to apprehend and for whose apprehension sufficient grounds exists; regulating processions and assemblies in public places or places of public resort; controlling traffic upon public thoroughfares and removing obstructions therefrom; preserving order in public places and places of public resort, at public meetings and in assemblies for public amusements, for which purpose any police officer on duty shall have free admission to all such places and meetings and assemblies while open to any of the public; assisting coroners to discharge their duties and exercise their powers under the Coroners Ordinance (Cap. 504); assisting in carrying out any revenue, excise, sanitary, conservancy, quarantine, immigration and alien registration laws; assisting in preserving order in the waters of Hong Kong and in enforcing port and maritime regulation therein; executing summonses, subpoenas, warrants, commitments and other process issued by the courts; exhibiting informations and conducting prosecutions; protecting unclaimed and lost property and finding the owners thereof; taking charge of and impounding stray animals; assisting in the protection of life and property at fires; protecting public property from loss or injury; attending the criminal courts and, if specially ordered, the civil courts and keeping order therein; escorting and guarding prisoners; executing such other duties as may by law be imposed on a police officer.





3.12 According to R v To Kwan Hang and Another, "Every duty carries with it the power to perform that duty". In other words, the police has and may exercise the power to perform those duties mentioned above from time to time as the occasion requires.





3.13 We will discuss below some of the powers conferred on the police that are particularly relevant to the recent events in Hong Kong.

(i) Power to Stop, Detain and Search

3.14 Police officers have powers to stop, detain and search any person who acts in a suspicious manner in a public place (PFO s54(1)). They also have powers to stop, detain and search any person in a public place, vessel or conveyance that they reasonably suspect of having committed or about to commit or intending to commit any offence (PFO s54(2)). In these situations, a police officer may stop a person to demand proof of his/her identity for inspection, detain a person for a reasonable period to enquire whether or not the person is suspected of committing any offence at any time, and if necessary, to perform a search on the person.





3.15 For persons acting suspiciously, a police officer may search the person for anything that may present a danger to the police officer. For persons that a police officer reasonably suspects of having committed an offence or is about to or intending to commit an offence, the police officer may search the persons for anything likely to be of value to the investigation of any offence that the persons being searched have committed, or reasonably suspected to about to commit or intending to commit. The police officer can detain the person for such period as reasonably required for such a search.

(ii) Power of Arrest

3.16 Section 50(1) of the PFO provides that: "It shall be lawful for any police officer to apprehend any person who he reasonably believes will be charged with or whom he reasonably suspects of being guilty of— (a)any offence for which the sentence is fixed by law or for which a person may (on a first conviction for that offence) be sentenced to imprisonment; or (b)any offence, if it appears to the police officer that service of a summons is impracticable."





3.17 Section 50(2) of the PFO provides that if the person to be arrested forcibly resists the endeavour to arrest him or attempts to evade the arrest, then a police officer or other person may use "all means necessary" to effect the arrest.





3.18 In accordance with Section 51 of the PFO, after an arrest is made by a police officer, the arrested person should be delivered to a police station.





3.19 Note that the language here is different from that of a similar provision in s101A of the Criminal Procedure Ordinance (“CPO”) (Cap. 221), which says that the force used must be "reasonable".

Level of Force

3.20 The difference between "reasonable force" and "all means necessary" may be illustrated in a case like this: Peter steals a loaf of bread from the supermarket. He has committed theft, which has a maximum sentence of 10 years (see s.9, Theft Ordinance (Cap 210)). A uniformed police officer sees Peter stealing and apprehends Peter. Peter shrugs free and runs away very quickly. The police officer realizes he cannot catch up. If he pulls out his gun and tries to shoot Peter, it is probably not "reasonable force" but it seems that according to PFO s50(2), the use of such force can be justified as "all means necessary", since otherwise the police officer cannot apprehend Peter.





3.21 Of course, this is a hypothetical scenario and it is not alleged that police officers usually make such unreasonable use of force. However, in extraordinary situations where a police officer decides, against common sense and good judgment, to literally employ "all means necessary" to effect an arrest, the suspect may have no legal recourse for any injury incurred due to the operation of PFO s50(2). (Note however that s50(2) must be interpreted in light of the basic rights and freedoms guaranteed in the Basic Law (see above), and it is possible that the courts may favor an approach that protects the rights of the suspect rather than this strict and literal interpretation.)

Power to Enter Premises to Effect Arrest

3.22 If any police officer has reason to believe that any person to be arrested has entered into or is in any place, the police can demand the person in charge of the place to allow him into the place (PFO s50(3)). If the person in charge does not comply, he/she may be guilty of obstructing a police officer in the due execution of his duty (see below for further discussion of obstruction offences). Even if the person in charge of the place does not comply, the police may nonetheless enter the place forcefully (e.g. by breaking any door or window) if a warrant may be issued but obtaining it would afford the person to be arrested an opportunity to escape (PFO s50(4)).

Power to Detain and Bail

3.23 Upon arrest and being brought to a police station, the person may be detained for investigation, but only for a reasonable period of time.





3.24 If the arrested person is to be detained, the police should bring the person before a magistrate "as soon as practicable" (PFO s52(1)). Note that there is a commonly accepted understanding that the police should not detain the person for more than 48 hours from the time of arrest, but the PFO does not specify such a time limit (except in cases where the arrested person may be deported). However, if one refers to other law enforcement agencies, their powers conferred by statute only allow for detention for not more than 48 hours. See for example:

S.26(a)(ii) Immigration Ordinance, Cap. 115

S.10A(6) Independent Commission Against Corruption Ordinance, Cap. 204

S.17C(2) Customs and Excise Service Ordinance, Cap. 342





3.25 It may then be inferred that detaining a suspect for more than 48 hours would fall foul of the "as soon as practicable" requirement. However, it must be stressed that the police have no automatic right to detain a suspect for 48 hours after his/her arrest. It is also conceivable that in some extreme situations more than 48 hours is required before the suspect can be properly dealt with. The amount of time the police may detain a suspect ultimately depends on the circumstances of each case.

(iii) Power to Discharge on Recognisance

3.26 There will be cases where the alleged offence concerned may not be so serious (as determined by the officer in charge), and/or the suspect poses a low flight risk (e.g. a HK permanent resident with fixed place of abode and stable employment, a person with clear criminal record, etc.), and/or that the suspect poses a low threat to public safety. In such circumstances the police have the power pursuant to PFO s52(1) to offer to release the suspect on “court bail” for the matter to be brought up before a magistrate in a future time and date to answer his/her charge(s).





3.27 There will be other cases where it is not reasonable for the police to expect to complete an investigation into the matter before the suspect is brought before a magistrate. The officer may then, pursuant to PFO s52(3), offer to release the suspect on “police bail”, which means that the person is released from detention upon entering into a recognizance to return to the police station at a date and time in future.





3.28 In exchange for the conditional release of the arrested person either to appear in court or to report back to the police station in the future, the police may impose / demand certain bail conditions from the arrested person, which may involve (1) deposit of an amount of money; or (2) provision of a surety. In colloquial terms this is called posting ‘bail’. The recognisance can be of cash consideration, or a “self-recognisance”, which does not require payment, but is a promise by the arrested person to pay a certain amount if he fails to report back as requested.





3.29 The amount of money the officer requests to be deposited from the arrested person and/or his surety must be determined having regard to all the circumstances, including the seriousness of the alleged offence, the circumstances of such person and the day or the time at which such sum is to be deposited (PFO s52(3A)(a) PFO).

(iv) Search and Seizure of Property With and Without Warrant

3.30 As mentioned above, there are certain circumstances where a police officer may search a person pursuant to PFO s54. According to section 50(6) of the PFO, when a police officer arrests a person, he/she may search the person or in the place of arrest for articles or chattels. The police may then take possession of any such items found. The item to be seized has to be, in his reasonable suspicion, of value to the investigation of any offence that the person has committed or is reasonably suspected of having committed.





3.31 The scope of search and seizure of items without warrant is thus limited to items found on the arrested person and in the vicinity of the scene of arrest, and is subject to the test of relevancy. There is no statutory provision to suggest that the police officer has to justify / provide reasons for any such seizure to the arrested person.

The Search Warrant

3.32 Pursuant to PFO s50(7), the police may apply for, and obtain from a magistrate, a search warrant where there is reasonable cause to suspect that there is in any building, vessel or place any article or chattel which is likely to be of value to the investigation of any offence that has been committed, or that is reasonably suspected to have been committed or to be about to be committed or to be intended to be committed, (a) to enter and if necessary to break into or forcibly enter such building, vessel or place and to search for and take possession of any such article or chattel which may be found therein; and (b) to detain, during such period as is reasonably required to permit such a search to be carried out, any person who may appear to have such article or chattel in his possession or under his control and who, if not so detained, might prejudice the purpose of the search.





3.33 The search warrant issued by a magistrate is one of the two lawful bases for a police officer to enter into private premises, with the other being police power to enter without warrant to apprehend suspects under PFO ss50(3)&(4) (see discussion above).





3.34 The application for a warrant is considered by evidence “on oath” (PFO s50(7)). In practice, the investigating officer swears an affidavit to spell out the reasonable cause of his suspicion that the proposed destination building / vessel in the search warrant contains articles or chattels of value to the investigation.





3.35 As the warrant confers the lawful authority for the police to enter into the target building / vessel, a police officer cannot exercise powers which are beyond the scope of the warrant. In other words, an officer with a search warrant in hand is not given carte blanche authority to enter any private premises at will to conduct his investigation. A warrant must specifically and unambiguously mention the target address and scope of search (e.g. suspected offence, types of items of interest and records corresponding to the time period of the suspected offence under investigation). The scope of a warrant is not immune to challenge if it is too wide.





3.36 The timing of the obtaining and execution of a search warrant is also important. As a magistrate is only able to determine whether to grant a warrant based on the affidavit before him/her, as time lapses between the time of the affidavit and the time of execution of the search warrant, there may be a material change in circumstances. What was a “reasonable cause” to suspect at the time of the affidavit may no longer still apply when the police officer executes the search warrant. For warrants that do not explicitly impose a time limit for its execution, the courts will imply a condition that the warrant must be executed within a reasonable time (Keen Lloyd Holdings Ltd and others v Commissioner of Customs and Excise and another).

Obtaining of Personal Data / Samples from Arrested Persons

3.37 Pursuant to PFO s59, the police may take and retain the following personal data from the arrested person:- (a) photographs, finger-prints, palm-prints and the weight and height measurements of that person; and (b) sole-prints and toe-prints of that person (if the officer has reason to believe that such prints would help the investigation of any offence).





3.38 Pursuant to PFO s59A, a police officer may also obtain, if the arrested person consents and a magistrate’s approval is obtained pursuant to PFO s59B, an “intimate sample” from the arrested person (dental impression, urine sample, blood sample, etc.) for forensic analysis. “Non-intimate samples” (e.g. buccal swab) may be obtained without the arrested person’s consent under PFO s59C. An officer may use such force as is reasonably necessary for the purposes of taking or assisting the taking of a non-intimate sample (PFO s59C(8))

(v) Maintaining Public Order

3.39 According to section 17(1) of the Public Order Ordinance (“POO”) (Cap. 245), any police officer may prevent the holding of, stop or disperse any public meeting or procession that is unauthorized (i.e. public gatherings of which notification is required but has not been given to the police, or public gatherings that have been objected to by the police, or those held in contravention to conditions imposed).





3.40 Section 17(2) allows any police officer of or above the rank of inspector, if he/she reasonably believes that the public gathering is likely to cause or lead to a breach of the peace, to prevent the holding of, or vary the place or route of any public gathering (except those held exclusively for religious purposes), even if notification was given to the police. Section 17(2) also allows any police officer of or above the rank of inspector to stop or disperse any meeting, gathering or procession whatsoever or wheresoever, if he/she reasonably believes that it is likely to cause or lead to a breach of the peace.





3.41 The level of force the police may use under these subsections is "such force as may be reasonably necessary" (POO s17(3)(a)).





3.42 In addition, under s17(4), a police officer of or above the rank of inspector may close off access to public places if he/she has reason to believe that an unauthorized public gathering is likely to take place in such areas, and according to s17(6), may use "such force as may be reasonably necessary" to prevent any person from entering into or remaining in the closed areas.





3.43 Moreover, section 45 of the POO authorizes any police officer to use such force as may be necessary—

to prevent the commission or continuance of any offence under this Ordinance; to arrest any person committing or reasonably suspected of being about to commit or of having committed any offence under this Ordinance; or to overcome any resistance to the exercise of any of the powers conferred by this Ordinance.





3.44 Section 46(1) of the POO restricts the use of any force authorized under the POO to be not greater than is reasonably necessary for its purpose.

3.II.3 Protections to Police in the Due Execution of Their Duties

3.45 The law provides additional powers and protections to police in the due execution of their duties. For example, section 36(b) of the Offences Against the Person Ordinance (“OAPO”) (Cap. 212) makes it an offence for any person that "assaults, resists, or wilfully obstructs any police officer in the due execution of his duty or any person acting in aid of such officer" with a maximum sentence of imprisonment for 2 years. Note that the offence of obstructing a "police officer" carries a heavier maximum sentence than the offence for obstructing a "public officer", the latter of which is 6 months' imprisonment or a fine of HK$1,000 (s23 Summary Offences Ordinance (Cap. 228)).





3.46 In addition, section 63 of the PFO makes it an offence (with a maximum sentence of imprisonment for 6 months and a maximum fine of HK$5,000) for any person to:

assault or resist any police officer acting in the execution of his duty

aid or incite any person so to assault or resist such officer

refuse to assist any such officer in the execution of his duty when called upon to do so

by the giving of false information with intent to defeat or delay the ends of justice, wilfully mislead or attempt to mislead any such officer





3.47 Note that there is an overlap between OAPO s36(b) and PFO s63 regarding assaulting or resisting a police officer. Suspects will be charged under either section at the discretion of the prosecution, depending on the circumstances and severity of the case.





3.48 To prevent impersonation of police officers, section 21 of the Summary Offences Ordinance forbids any person to wear any police uniform (or any clothing that closely resembles police uniform) that he/she is not entitled to wear. In addition, section 24 of the Summary Offences Ordinance forbids unauthorized possession of any articles that form part of the police uniform.

3.II.4 Unlawful Use of Force

3.49 Any person, whether a police officer or not, commits an offence if he/she assaults another person without lawful excuse. The law entrusts the police with special powers (see above) to perform their duties, and thus the public expects that police officers will always act lawfully while performing their duties. Any unlawful assault on citizens would be considered a serious breach of that trust. Generally speaking, the fact that a person convicted of a crime is a police officer is an aggravating factor when the court is considering a sentence (HKSAR v Hui Man Tai).





3.50 The basic form of assault is "common assault". It includes all levels of violence, including all forms of unlawful physical contact that does not necessarily result in physical harm (e.g. touching). It also includes any behavior that causes another to apprehend the immediate use of unlawful violence. Any person who is convicted of common assault is liable to imprisonment for 1 year (OAPO s40).





3.51 Assaults that result in more serious injuries are often called "aggravated assaults". The Offences Against the Person Ordinance defines a couple of such offences: