Following is an urgent question by the Hon Frederick Fung under Rule 24(4) of the Rules of Procedure and a reply by the Secretary for Security, Mr Lai Tung-kwok, in the Legislative Council today (October 15):
On the 28th of last month, the Police fired 87 canisters of tear gas at the protesters staying at Tim Mei Avenue and Connaught Road, Central/Harcourt Road, etc. The Police stressed after the incident that the firing of tear gas was consistent with international standards, and that they had no other options but to fire tear gas at the protesters who on that day violently charged at the Police cordon lines and ignored their advice and warnings. However, according to eyewitnesses' reports and television news footages, the Police had tear-gassed protesters repeatedly at various locations without giving any prior warning under the circumstances where they were not being charged at. For instance, when the first round of tear gas was fired, the Police aimed the tear gas at the students standing behind mills barriers outside the Central Government Offices at Tim Mei Avenue, but it was learnt that those students had all along not done anything to charge at the police cordon lines, and that the Police had not displayed any banner warning that tear gas would be fired before doing so. As members of the public are gravely concerned whether the Police's firing of tear gas met the relevant criteria and are worried that the Police would fire tear gas again in the near future to disperse the protesters, will the Government inform this Council:
(1) of the existing criteria adopted by the Police for firing tear gas, including the circumstances under which tear gas may be fired, whether prior warnings must be given to protesters and whether it may be fired under the circumstances where the Police are not being charged at or treated violently; the circumstances under which the Police may resort to more powerful weapons such as rubber bullets, etc.; as the Police has indicated that pepper spray and tear gas are of a similar level of force, whether police officers are also allowed to fire tear gas under the circumstances where the use of pepper spray is permitted;
(2) as the protests are still going on at present, whether the avoidance of conflicts and dangerous situations is the prime consideration of the Police when maintaining public order, or whether there are other considerations, such as firing tear gas or even using more powerful weapons against peaceful protesters merely for enforcing the clearance instructions of senior government officials; and
(3) given the allegation that, on the 28th of last month, police officers threw tear gas canisters at the students gathering peacefully at Tim Mei Avenue without giving any prior warning under the circumstances where they were not being charged at, whether the authorities will immediately conduct a thorough investigation into whether there was any misuse or indiscriminate use of tear gas so as to prevent recurrence of similar situation; if they will conduct such an investigation, whether they will temporarily suspend the use of tear gas until the completion of the investigation; if there will not be such temporary suspension, of the reasons for that; whether the authorities will look into if the officials concerned need to be held politically accountable for the decisions to clear the protest sites and fire tear gas at the protesters, so as to prevent them from making similar decisions again?
Hong Kong residents enjoy the freedom of and the right to peaceful assembly, procession and demonstration under the Basic Law. However, in exercising such rights, they shall not wilfully disrupt public order or act in defiance of the law. In 2005, the Court of Final Appeal (CFA) pointed out in a case involving the freedom of demonstration that the right to assembly, procession and demonstration was not unrestricted in that, for instance, if the assembly concerned caused unreasonable obstruction to the free passage along a public road, i.e. exceeding what the public can reasonably be expected to tolerate, then the protection for the assembly concerned under the Basic Law would be lost. In another case heard by the CFA in 2012, a permanent judge also pointed out that an act could be properly regarded as "disorderly" when it went well beyond what any citizen would have to tolerate.
My consolidated reply to the Hon Frederick Fung's question is as follows:
When expressing their aspirations, participants of public meetings or processions are advised by the SAR Government to abide by the law and respect others' rights so that the events could proceed in a peaceful and orderly manner without compromising the Police's efforts to maintain law and order. As the guardian of public order, the Police act in accordance with the law under all circumstances and shall, in the light of the prevailing circumstances, take decisive measures against any illegal behaviour and acts in breach of the peace or public order in a bid to maintain public order and ensure public safety.
On September 26, a public meeting, of which the Police had been notified by the organiser, was held on the pavement outside the Central Government Offices (CGO). To facilitate the assembly, the Police, subsequent to their issue of the "letter of no objection", co-ordinated with the parties concerned. Regrettably, on that night, participants of the meeting were directed to storm the gate of CGO and climb over the security fencing in order to force their way into the East Wing Forecourt and occupy it. Charging the Police cordon line, the participants pushed over the mills barriers and scuffled with security guards and police officers, posing danger to themselves and other people on the scene, and causing injuries to many people.
Running against section 18(2) of the Public Order Ordinance, the assembly turned out to be unlawful as some of the protesters had conducted acts of violence and incited others to storm government building, disrupting public order and breaching the peace.
Subsequent to the launch of the "Occupy Central" as announced by its founders in the early hours of September 28, a large number of radicals with different backgrounds joined the student-led assembly. On the afternoon of September 28, some protesters broke their way to Harcourt Road, where traffic was running, and occupied it to cause wilfully a massive traffic blockage, severing the transport lifeline of Hong Kong Island. Against the Police's appeals and warnings, a swarm of radical protesters standing in front of the Police cordon line, on a number of occasions, deliberately charged the cordon line and seized the mills barriers in an organised manner. They assaulted police officers with umbrellas and water bottles. Deliberately surging forward in an organised manner, they attempted to break the Police cordon line. As a result of such behaviour, public safety and public order were seriously at stake. By means of loudspeakers and warning banners, the Police repeatedly advised participants of the unlawful assembly to leave as soon as possible, and gave warnings that the Police would use force if they did not cease charging the Police cordon line.
In view of the serious charging at the Police cordon line and despite repeated advice and warnings, which turned out to be totally futile, the Police used Oleoresin Capsicum (OC) foam to stop protesters from further charging in a bid to minimise the chance of injuries to people on the scene. However, the crowd kept growing and the Police cordon line was incessantly charged. The scene was very chaotic as protesters, who were large in number, continued to gather and launched violent charging despite the Police's advice and warnings. On that day, quite a number of protesters were equipped with such gear as goggles, face masks, umbrellas and cling film for eye and body protection from OC foam so that they could continue charging the Police cordon line.
In view of the failure to achieve the effect of counteracting the incessant charging of the crowd by the use of OC foam as well as radical protesters' deliberate and incessant acts to crush their way forward, the Police, in preventing the situation from getting further out of control which would lead to more serious casualties, had no alternative but to use tear gas to put an immediate halt to the violent charging staged by the protesters, to create a safe distance from the protesters and to stop any acts that might threaten public safety and public order.
Just imagine once the Police cordon was broken through by piles and layers of crowds formed by thousands of protesters, and with swarms of crowds crushing their way forward, the dire consequence of a stampede involving a large number of falls, trampling accidents, serious injuries or even fatalities was highly probable. The Police were, therefore, bound to take immediate measures to keep the crowds at a safe distance in order to avoid heavy casualties that might result from any scuffles or charging acts.
There are strict Police guidelines for the use of force in that the force to be used shall be the minimum force necessary for achieving a lawful purpose. Before using force, police officers shall, when circumstances permit, give warning of their intention to use force. The person(s) involved shall be given every opportunity, whenever practicable, to obey police orders before force is used. Police officers exercise a high level of restraint at all times in the use of force. Field commanders shall decide on the appropriate force to be used after an assessment is made in the light of the overall circumstances and practical needs at the material time.
As always, the Police shall consolidate their experience in major operations to meet their future internal security requirements and operational commitments. As far as the Police's handling of the unlawful public assembly since September 26 is concerned, the Complaints Against Police Office has received a number of complaints, which include accusations against the Police of overuse of force during the operation. As advised by the Independent Police Complaints Council (IPCC), owing to public concern over these complaints and the serious degree in the accusations, all reportable complaints arising from the incident shall be referred to the Serious Complaints Committee for follow-up action. The Police shall fully co-operate with the IPCC in their work.
Hong Kong Police Force is a highly professional and outstanding disciplined force. During the operations in recent days, frontline officers have stood fast to their posts and performed their duties with perseverance and untiring devotion in a professional and impartial manner while exercising a high level of restraint. When facing large-scale rallies, they have to maintain public order and safety in a fair manner with utmost restraint, to stand in and settle from time to time battles of words and confrontation between opposing sides, and also to separate crowds, prevent conflicts and protect protesters at a point of emotional intensity among the crowds. Such difficult and perilous situations and challenges have well been witnessed in recent TV news coverage. The SAR Government fully supports the Police in their continued efforts to handle with utmost professionalism and restraint such extremely difficult tasks. It is further hoped that there is understanding, recognition and support from various sectors of the community.
Thank you, President.
Ends/Wednesday, October 15, 2014
Issued at HKT 17:15