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LCQ5: Arrests and prosecutions in relation to public order events
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     Following is a question by the Hon Kenneth Leung and a written reply by the Secretary for Security, Mr Lai Tung-kwok, in the Legislative Council today (May 13):

Question:

     It has been reported that there have been recent prosecution cases involving public assemblies which were withdrawn by prosecutors right before trial. Some members of the public suspect that this situation was caused by the Police instituting prosecutions without prior consultation with the Department of Justice on whether the relevant evidence was sufficient to justify a reasonable prospect of conviction. Besides, when recently trying a case involving a public assembly, a magistrate criticised a police officer for testifying dishonestly and advised the authorities to refer the matter to the Complaints Against Police Office for follow up. In this connection, will the Government inform this Council:

(1) whether the Police seek, as a general practice, the advice of the Department of Justice before deciding if prosecution is to be instituted against persons involved in public processions and assemblies; if they do, of the details of the relevant guidelines and procedures; of the number of such cases in which the Police sought the advice of the Department of Justice beforehand and the number of persons involved in such cases between September last year and April this year; whether the Police are obliged to follow the advice of the Department of Justice if the advice is against the institution of prosecution;

(2) of the following information (set out in the Annex) on the prosecution cases involving public processions and assemblies each month from September last year to April this year: (i) the number of persons arrested, (ii) the number of persons prosecuted, (iii) the number of persons who were prosecuted but then the prosecutions were unconditionally withdrawn by prosecutors, (iv) the number of persons who were prosecuted but then allowed to enter into the "offering no evidence" bind-over arrangement instead of being prosecuted, (v) the number of persons involved in cases that are under trial or listed for trial, (vi) the number of persons convicted, and (vii) the number of persons acquitted;

(3) regarding the prosecution cases mentioned in (2), of the number of cases in which the Police did not seek the advice of the Department of Justice before prosecutions were instituted and the relevant reasons for that; and

(4) of the measures in place for the Department of Justice and the Police to ensure that police officers testify honestly and accurately; the consequences to be faced by a police officer when he/she is alleged of testifying dishonestly by the judge during the trial, and how the Department of Justice and the Police follow up such cases; the number of such cases investigated by the authorities in the past five years, and among such cases, the respective numbers of cases in which police officers were disciplined, prosecuted and convicted?

Reply:

President,

     Under the Basic Law, Hong Kong residents enjoy the rights and freedoms of speech, of assembly, of procession and of demonstration. However, such rights and freedoms are not absolute. The provisions of the International Covenant on Civil and Political Rights (ICCPR) that are applicable to Hong Kong, including Article 19 on the right to freedom of expression and Article 21 on the right of peaceful assembly, have been incorporated into the Hong Kong Bill of Rights Ordinance (Cap. 383). According to the ICCPR and the Hong Kong Bill of Rights, the exercise of the right to freedom of expression carries with it special duties and responsibilities. It may therefore be subject to certain restrictions. In exercising the right to freedom of expression or the right of peaceful assembly, a person should respect the rights of others and should not compromise public order and public safety. The Police do not tolerate any illegal acts and will definitely take resolute enforcement actions.

     The Government's reply to the Hon Kenneth Leung's question is as follows:

(1) to (3) As a professional law enforcement agency, the Police have the responsibility to uphold law and order, conduct investigations, collect evidence, and arrest suspected offenders.

     During the illegal "Occupy Movement" between September and December 2014, a total of 955 persons were arrested by the Police for various alleged offences, and another 48 persons were arrested by the Police afterwards. Some of them have already been convicted of criminal offences such as indecent assault, common assault, possession of offensive weapons, theft, criminal damage, criminal intimidation, possession of Part I poisons or careless driving etc. by the court. Given that just less than half a year has elapsed since the end of the illegal occupation, a considerable number of cases are still either in the judicial process or awaiting legal advice. The HKSAR Government will continue to follow up these cases for pursuit of offenders' legal responsibility during the illegal "Occupy Movement".

     In addition, 112 persons and 60 persons were arrested and prosecuted respectively in relation to public order events held between January and April 2015. The Police do not keep the number of convictions in these cases.

     Under the criminal justice system in Hong Kong, there is a difference between the test adopted by the Police when effecting arrest, the approach adopted by the Department of Justice (DoJ) to decide whether prosecution should be made, and the test adopted by the court when deciding whether to convict a defendant after trial. Police officers are entitled to effect an arrest provided that they have a reasonable suspicion that the person in question has committed a relevant offence. They are not required to consider matters, such as public interest, which would have to be considered by the DoJ. Due to such differences, the mere fact that an arrested person is not subsequently charged with any criminal offence does not necessarily mean that the Police have made a wrongful arrest; nor does it necessarily follow that the prosecutors have failed in their duty to commence prosecution.

     In handling prosecution work, prosecutors of the DoJ must in accordance with the Prosecution Code first consider whether there is sufficient evidence when considering whether to prosecute. If so satisfied, prosecutors should next consider and balance all issues of public interest before deciding whether prosecution should be pursued. A prosecution shall not be commenced or continued unless there is a reasonable prospect of conviction. All prosecution decisions are made in accordance with the law, the Prosecution Code and the evidence, totally free from any political, media or public pressure. Prosecutors have always acted in strict compliance with the Prosecution Code in handling prosecutions and incidental works to ensure that an effective and fair criminal justice system is maintained.

     Judges, on the other hand, will only deliver a guilty verdict if the offence is proved beyond reasonable doubt, which is a threshold higher than that adopted by the DoJ when deciding whether prosecution should be made. Accordingly, the mere acquittal of a defendant does not necessarily mean that the defendant should not have been arrested or charged in the first place.

     According to Police's internal guidelines, generally speaking, the Police will seek legal advice from the DoJ before making prosecutions against persons arrested in relation to public order events. The Police will also follow up on DoJ's advice. Such guidelines are internal documents of the Police and cover how the Police investigate and handle cases and hence it is inappropriate to disclose the guidelines.

     The Police do not keep any statistical breakdowns by public order events whereby DoJ's legal advice had been sought prior to prosecution.

(4) As law enforcement officer, a police officer shall give evidence which he is satisfied to be true and accurate in court.

     If the court recommends that a case be referred to the Complaints Against Police Office (CAPO) of the Hong Kong Police Force (HKPF) for follow-up action, the CAPO shall handle it in a fair and impartial manner according to established procedures, and shall then report to the Independent Police Complaints Council (IPCC) or submit an investigation report to the IPCC in accordance with the Independent Police Complaints Council Ordinance (Cap. 604). The HKPF shall seriously handle any case in which police officers' non-compliance in this regard has been proved by evidence. The CAPO does not have any statistical figures of investigation cases by "dishonest testimony".

     On the other hand, the DoJ will request relevant law enforcement agencies to conduct investigations and take follow-up actions if it considers that a witness has given false testimony in a certain case.

Ends/Wednesday, May 13, 2015
Issued at HKT 16:55

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