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Following is a written reply by the Secretary for Security, Mr Lai Tung-kwok, to a question by the Hon Kenneth Leung in the Legislative Council today (November 6):
Question:
Article 28 of the Basic Law prohibits arbitrary or unlawful body searches of the residents of Hong Kong, and Article 3 in Part II (Hong Kong Bill of Rights) of the Hong Kong Bill of Rights Ordinance (Cap. 383) also provides that no one shall be subjected to torture or degrading treatment. Regarding the conduct of body searches on members of public by government departments (departments), will the Government inform this Council:
(a) which departments are empowered to conduct body searches, and of the legal basis of such authorisation (with a breakdown of the details by department);
(b) of the number of body searches conducted by each of the departments concerned from 2008 to 2012, with a breakdown by type of search (i.e. (i) non-removal of clothing, (ii) partial removal of clothing, (iii) complete removal of clothing and (iv) body cavity);
(c) whether the departments concerned have formulated procedures and law enforcement guidelines to pay due regard to the dignity of the persons being searched and prevent body searches from becoming a tool to humiliate such persons; if they have, of a breakdown of the relevant details by department; and
(d) whether the departments concerned have set up a mechanism to handle complaints lodged by persons being body-searched who feel that their dignity has been hurt; if they have, of the details; if not, the reasons for that; of the number of such complaints received by the departments concerned in each of the past five years, with a breakdown by department and outcome of handling the complaints?
Reply:
President,
(a) Law enforcement agencies (LEAs), including the Hong Kong Police Force (HKPF), Customs and Excise Department (C&ED), Immigration Department (ImmD), Correctional Services Department (CSD) and Independent Commission Against Corruption (ICAC), are empowered by the law to conduct body searches in discharging their statutory functions, including detecting crimes and offences and ensuring that detainees, including persons in custody, do not possess any item that would assist them to escape or assist others to do so; injure themselves or others; destroy or dispose of evidence, or commit further crime while in custody. By conducting body searches of detainees, law enforcement officers fulfill their duties of caring for the detainees and ensuring the safety of others who may come into contact with them.
The legal basis of each LEA for its body searches of arrestees and detainees is detailed at Annex I.
(b) to (d) LEAs have formulated related procedures and guidelines on the conduct of body searches in order to safeguard and respect the rights of the persons to be searched, as well as to prevent any unnecessary searches. Such procedures and guidelines are in place so that law enforcement officers, in exercising their power under the law, shall, in the light of the lawful purposes of body searches and the circumstances of individual cases, adopt the principles of "rationality" and "proportionality" in determining the scope of each search.
Before conducting a search, law enforcement officers shall, as far as practicable, explain to the person(s) to be searched of their statutory duties, the reasons for and scope of the search, and make a record, which will be scrutinised by a supervisory officer so as to ensure compliance of the search procedures and follow up any cases of violation of the guidelines. Furthermore, body searches of any person(s) shall only be carried out by law enforcement officers of the same sex.
To ensure that complaints will be processed in a fair and just manner, all LEAs have their own mechanism to handle complaints lodged by the person(s) being searched. Any concerns about the search may be raised on the spot to the officer-in-charge of the case or of the detention facilities, who shall, then, inform the detainee(s) of his/her decision, justifications and/or any other actions that have been taken. A record to this end shall be made accordingly. Any person(s) aggrieved by the search may lodge a complaint to the unit set up specifically by the LEA for handling complaints, and the LEA concerned shall carry out an investigation and take appropriate actions in accordance with the established mechanism.
Figures of body searches of arrestees and detainees by each LEA from 2008 to 2012 as well as the number of complaints received are at Annex II.
Ends/Wednesday, November 6, 2013
Issued at HKT 16:27
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