on 19 February 1998
Provisional Legislative Council
Panel on Security
Progress Report on Implementation of Interdepartmental Working Group's Proposals on Law Reform Commission Report on Arrest
This paper reports on the progress of implementing the proposals of the Interdepartmental Working Group (WG) on the Law Reform Commission (LRC) Report on Arrest.
2. The LRC Report on Arrest recommended that the Police and other law enforcement agencies should adopt a number of provisions in the United Kingdom's Police and Criminal Evidence Act 1984 (PACE), which set out detailed procedural requirements and safeguards to avoid possible abuse of powers. A WG comprising the then Security Branch and law enforcement agencies was formed to study the LRC's recommendations. In examining the recommendations and arriving at its own proposals, the WG endeavoured to strike a balance between the need for effective law enforcement and the protection of the rights of individuals. The WG's proposals were published to consult the then Legislative Council (LegCo) Panel on Security, Fight Crime Committee, District Fight Crime Committees and District Boards and members of the public for two months in 1996. The majority of respondents supported in principle the implementation of the proposals. The Administration therefore announced in June 1997 the decision to implement the WG's proposals (Annex A) in a phased manner over the next three years.
3. As part of its ongoing efforts to improve the procedures relating to the proper use of powers by the law enforcement agencies, the then Secretary for Security gazetted the Rules and Directions for the Questioning of Suspects and the Taking of Statements (Annex B) in October 1992 for all law enforcement officers. Some of the LRC's recommendations have been provided for in the Rules and Directions, for example, additional safeguards would be provided to children and young persons who are arrested and an arrested person has the right to consult his friend and solicitor.
4. We believe implementing the WG's proposals will -
- underline our resolve to improve our law enforcement system to safeguard against possible abuse of powers;
- provide the law enforcement agencies with the necessary powers to fight crime while at the same time balancing those powers with the safeguards to protect the rights of individuals; and
- promote consistency in the powers available to law enforcement agencies and enable the public to understand their rights and obligations.
Improvement Measures on Detention
5. Many improvement measures proposed by the WG are related to detention, which include the rights of detainees, the length of detention and the way statements are taken. We have accorded priority to implementing these measures. The major improvements include the following-
- to enable members of the public to better understand their rights and obligations, the Police, Independent Commission Against Corruption (ICAC), Immigration Department (Imm D) and Customs and Excise Department (C&E D) would publish leaflets on powers and procedures relating to stop, search, arrest and detention in 1998. Statistics on stops, searches, road block checks and detention would also be published this year for public scrutiny. Publicity, such as TV/ Radio Announcements of Public Interest, posters, on the availability of these leaflets and statistics would be launched by individual departments;
- all law enforcement agencies would appoint "Custody Officers" to ensure those in detention are treated properly and "Review Officers" to review the need for further detention in 1998. "Custody Officers" would in general be the station's duty officer who is a Station Sergeant (or at an appropriate rank or above in other law enforcement agencies) and not normally connected with the investigation. "Review Officers", on the other hand, will be at the rank of Inspector or above (or at an appropriate rank or above in other law enforcement agencies) who is not connected with the case;
- to enhance the transparency of the statement taking process and the admissibility of confession statements, we have pledged in our Policy Commitment in 1997 to provide funding for the expansion of the use of video-interviewing of suspects. Originally, it was planned to increase the number of Video Interview Rooms (VIRs) of the Police to 20 this financial year and to provide another 20 in 1998/ 99. The long term aim is to set up 20 VIRs more by the year 2000, making a total of 60 available to the Police so that at least one VIR will be set up in every major divisional Police station. Following a review recently, we decided to set up these 60 VIRs by the end of 1998;
- we would formulate legislation on the taking of intimate (e.g. blood and semen) and non-intimate samples (e.g. hair and saliva) in 1998 to provide greater protection to the rights of suspects and at the same time enhance the capability of law enforcement agencies to tackle serious crimes e.g. sexual offences;
- we would formulate legislation in 1999 to bring greater certainty on the length of detention and provide continuous and accountable review of the need for longer periods of detention. In addition, it would become a statutory right for an arrested person to inform a friend or relative or consult a lawyer privately at any time and any delay of such right of up to 48 hours is only permitted in the case of "arrestable offences", i.e. an offence for which the sentence is fixed by law or for which a person may be sentenced to imprisonment for a term exceeding 12 months as defined in the Interpretation and General Clauses Ordinance (Cap 1). Furthermore, only an officer at the rank of Superintendent or above (or at an appropriate rank or above in other law enforcement agencies) could authorise an intimate search of a detained person under prescribed conditions, for example, the detainee may have concealed inside his body a dangerous drug; and
- to improve the treatment of detainees, we are now drawing up a programme on improvement to detention facilities so as to bring them up to a better standard.
Other Improvement Measures
6. Apart from detention, the WG's proposals also seek to make improvements to other areas of powers exercised by the law enforcement agencies, including stop and search, entry, search and seizure and arrest. For those which would need legislative amendments (Part I of Annex A), we plan to implement them by phase by 2000. For those which do not require legislative changes (Part II of Annex A), most have been launched. For example -
- Police officers would have access to certain information, for example, whether the person stopped has been reported as missing, during an identity check. Other safeguards have also been in place to ensure that identity checks are carried out properly, for example, the Police's computer system captures any information requested by the Police officer when conducting the identity check which provides a trail for investigation whenever a complaint against a Police officer is lodged;
- Police, Immigration and Customs and Excise officers (except Immigration and Customs and Excise officers stationed at control points responsible for conducting checks on persons entering or leaving Hong Kong) would state in layman terms the reasons for the stop and search to the person affected;
- persons arrested would be informed of the ground for the arrest. In addition, persons voluntarily attending at Police stations or other law enforcement agencies offices to assist with an investigation would be entitled to leave at will. The arrested persons would also be taken to a nearest Police station as soon as possible. Other law enforcement agencies may convey their arrested persons to their nearest offices;
- we would provide the necessary resources to enhance the use of video-interviewing of suspects. Details are provided in para 5(c) above; and
- additional safeguards have been provided to children and young persons under arrest. As stated in the Rules and Directions for the Questioning of Suspects and the Taking of Statements, for example, children and young persons under the age of 16 should only be interviewed in the presence of a parent or guardian, or, in their absence, some person who is not a Police officer and is of the same sex as the child.
7. We believe implementing the WG's improvement measures will provide the law enforcement agencies with the necessary powers to fight crime while at the same time balancing those powers with the safeguards necessary to ensure that they are used properly.