Paper for Bills Committee on the
Independent Police Complaints Council Bill
Implications of conferring
investigative powers on non-Police personnel
As requested by the Bills Committee at the last meeting held on 21 January, this paper sets out the implications of conferring investigative powers on non-Police personnel or other independent bodies.
Statutory powers required
2. At present, the investigation of complaints against Police officers is conducted by Complaints Against Police Office (CAPO) or by individual crime formations and monitored by CAPO. Investigation of complaint against Police officers follows the same procedures as used in an investigation into criminal offences. During the course of investigation, the following actions may be undertaken by the investigation officers -
- Taking of statement - when a complaint is received, the complainant, the complainees and all relevant witnesses will be interviewed as soon as practicable with statements recorded;
- Search and seizure of evidence - depending on circumstances, the complainant may be photographed for any injuries sustained; any evidence relevant to the complaint will also be collected or seized if appropriate under section 50 (6) & (7) of the Police Force Ordinance (PFO);
- Scene visits - a scene visit will be conducted as soon as practicable with a view to locating independent witnesses and any other evidence. The scene visit may involve examination of the scene by forensic and fingerprints experts as well as professional photographers. Depending on the circumstances, public appeal for witnesses may be required;
- Identification of complainees - efforts will be made to identify/verify the complainee(s) concerned. This may include the checking of duty lists of the respective formation(s), the checking of Regional Command and Control Centre communication record, and the officers notebooks. If the identity of the complainee remains unclear, a formal identification parade may be conducted;
- Technical investigation - all evidence collected or seized may be submitted for examination by specialists which may include the forensic experts on analysis of scientific evidence, the fingerprint examiner, the Ballistics and Firearms Identification specialists if firearms are involved, and/or forensic pathologists for advice on the consistency of the injuries sustained by complainant;
- Others - for some investigations, CAPO may be required to mount static observation in order to obtain evidence or other useful information to take the case further. The investigation process may also involve frequent liaison with other Police units or government departments, for example, Criminal Records Bureau for criminal records, Criminal Intelligence for intelligence records, Identification Bureau/Personnel Wing for records of Police officers, Correctional Services Department for information on prisoners, Immigration Department for registration of persons records etc;
- Criminal proceeding - at the conclusion of an investigation, a case may be referred to the Attorney Generals Chambers for appropriate advice on whether criminal or disciplinary proceedings should be instituted against a complainee. If a criminal charge is warranted, CAPO may arrest the complainee under section 50 of the PFO and charge him with the appropriate offences. The complainee will either be detained or allowed bail pending court trial under section 52 of PFO;
- Disciplinary proceeding - If disciplinary charges are laid against the complainee, he will be dealt with in accordance with the Police (Discipline) Regulations under the PFO.
3. We have not yet received the details of the Bills Committees proposal of providing the Independent Police Complaints Council (IPCC) with investigative powers to undertake investigation of complaints against Police officers. Based on discussion in the previous meetings, we believe the proposal would at least have the following implications -
- Statutory amendments - the IPCC Bill will need to be substantially revised in order to confer investigative powers on non-Police personnel of the IPCC to conduct investigation and be given powers similar to those under the PFO. The impact on other legislation cannot be ascertained until we receive full details of the proposal;
- Parallel investigation - to enable IPCC to conduct investigation will lead to duplication of and interference with CAPOs investigation. Most serious complaints such as those involving assault, fabrication of evidence and threat are criminal in nature in respect of which the Police Force is required to take lawful measures (see section 10 of the PFO);
- Resource implications - the exact resource implications of empowering the IPCC with investigative powers cannot be assessed at this stage as the scope of the proposal is not clear. To give Members a general picture, there are 107 Police officers working in CAPO Regional Offices. If necessary, CAPO can draw on other available resources including technical help and criminal investigators to assist in the investigation. In terms of training, addition, CAPO officers are normally trained for criminal investigation, all Police officers are required to attend a criminal investigation course of 3 months before they are posted to CAPO. This is on top of the basic training of 26 weeks provided for junior Police officers and 36 weeks for inspectors.
4. The proposal will involve fundamental changes to the existing Police complaints system. As the existing system in Hong Kong is not out of step with other overseas police jurisdiction and is by and large operating effectively, we do not believe that there is a need for such fundamental change. Having regard to the resources implications and the training requirement, we consider the proposal as neither practical nor workable. In particular, the proposal is not cost-effective as it requires maintaining a team of investigators to investigate only those cases for which the IPCC and CAPO cannot agree on the investigation results.
5. Our understanding of Members proposal is that where the IPCC cannot endorse the investigation result of a complaint by CAPO after thorough discussion, this should trigger off the involvement of non-Police investigators. We believe that these are usually serious cases. In this connection, Members may wish to note that as part of our improvement measures, the IPCC will set up a special panel to monitor and review serious cases after which it will report to the IPCC. These serious cases may include -
- unresolved cases, i.e. cases for which the IPCC cannot endorse the CAPOs investigation, which are considered to be serious by the panel;
- suspicious cases involving death/serious injuries; and
- cases of public interest which are considered to be serious by the panel.
6. Where the cases fall within the above categories, the IPCC will submit its findings and recommendations on those cases in a special report to the Governor who will take such action as he sees fit. He may direct the Commissioner of Police to take certain action. Or the Governor in Council may appoint a Commission of Inquiry under the Commissions of Inquiry Ordinance, Cap 86, to look into the handling of such cases. The setting up of a special monitoring panel will provide a useful forum for IPCC Members to proactively monitor the investigation of serious complaints. Police representatives may be invited to brief members on progress of investigation where necessary. We therefore consider the setting up of a special monitoring panel should go a long way to address Members concern.
30 January 1997
Last Updated on 16 December 1998