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LCQ5: Police officers testify at court hearings

     Following is a question by the Hon Wong Yuk-man and a reply by the Secretary for Security, Mr Lai Tung-kwok, in the Legislative Council today (June 15):


     It has been reported that during the trial of a case in which a secondary school student was prosecuted for assaulting a police officer, the magistrate criticised the testifying police officer as a dishonest witness, and the student was subsequently acquitted and compensated for his litigation costs of $500. Moreover, in May last year, an autistic man with moderate intellectual disabilities was arrested and charged with manslaughter by the Police. The family members of the man reproached the Police for handling the case improperly, including taking the first statement from the said mentally incapacitated person in the absence of his family member or guardian, and asking leading questions that caused him to make a statement against himself. In this connection, will the Government inform this Council:

(1) of the measures in place to ensure that police officers collect evidence honestly during criminal investigations, and testify honestly during trials;

(2) whether it will set up a mechanism to impose punishment on police officers who are proven to have testified dishonestly in trials; and

(3) given that some police officers have been criticised by judges for testifying dishonestly in criminal cases, whether the authorities will consider exercising discretion to make compensations to persons who have been acquitted in such cases for their losses in terms of time and money, as well as their mental suffering arising from those cases; if they will not, of the reasons for that?



     The consolidated reply to Hon Wong Yuk-man's question is as follows:

     Under the criminal justice system in Hong Kong, police officers carry out law enforcement work such as conducting investigations and effecting arrest etc, the Department of Justice (DoJ) is responsible for prosecution while the court is responsible for trial and giving verdict. These three kinds of work adopt different legal standards.

     In respect of the Police, police officers are entitled to effect an arrest if they have a reasonable suspicion that the person in question has committed a relevant offence. For the DoJ, in handling prosecution work, prosecutors must in accordance with the Prosecution Code first consider whether there is sufficient evidence and next consider and balance all issues of public interest before deciding whether prosecution should be made. A prosecution shall not be commenced or continued unless there is a reasonable prospect of conviction. As for the court, judges will consider all evidence relevant to the case when hearing a criminal case. Such evidence would include evidence put forward by the prosecution and defence, circumstantial evidence and testimonies by witnesses etc. Judges will deliver a guilty verdict only if the offence is proved beyond reasonable doubt.

     Based on the above-mentioned different legal standards, the mere fact that an arrested person is not subsequently charged with any offence in certain cases 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. And as the court adheres to the principles of "beyond reasonable doubt" and "the benefit of doubt should go to defendants" while handling criminal cases, the mere acquittal of a defendant does not necessarily mean that there is a problem with the arrest, prosecution or testimonies by certain witnesses. Defendants, if convicted, may lodge an appeal. This is indeed a manifestation of how the independent judicial system and rule of law in Hong Kong safeguard the rights of the public.

     According to Section 10 of the Police Force Ordinance (Cap 232), the duties of the police force shall be to take lawful measures for preventing and detecting crimes and offences.

     During police investigation of a case, the collection of evidence is a very important element. Depending on the nature of the case, and for the purpose of crime prevention and detection, the Police will, if necessary, request for information related to crime investigation from relevant people or organisations. In accordance with relevant legal requirements, the Police will also apply for a court warrant from the court for entering premises and searching for, taking possession of or detaining relevant articles, such as seizing documents or information as evidence. In hearing individual cases, the court will also follow the relevant provisions of the Evidence Ordinance (Cap 8) and consider guidelines under the relevant court case precedents in determining the admissibility of the evidence of the witness(es) and other evidence.

     Hon Wong's question asks about what measures are in place to ensure that police officers will testify honestly during court hearings. Same as all people who testify during court hearings, a police officer shall give sworn evidence which he is satisfied to be true and accurate in court.

     According to Chapter 45 of the Police General Orders, prior to the trial, prosecution witnesses (including police officers) are allowed to refresh their memories of what occurred from records (for example, their own statements, etc.). However, they should not have a pre-trial discussion of the evidence. In particular, police officers should not hold a meeting before the trial to look at each other's notebooks or statements, or to discuss the evidence. Nevertheless, police officers may follow the accepted practices of: (a) pooling their re-collections of events when making their notebook entries, either at the time of or shortly after those events when facts are fresh in their minds; (b) at the time of (a), signing each other's notebooks to indicate that these are true and that they agree with the records made; and (c) later, before giving evidence, refreshing their memories individually from the records made. In addition, a witness (including a police officer) must not speak to another witness who has not yet given evidence. Any communication or conversation on case-related or evidence-related topic amongst witnesses (including police or civilian) is strictly prohibited. Contravention by police officers will result in a full disciplinary investigation which may even lead to criminal charges.

     Furthermore, a witness wilfully committing perjury in court and a witness being considered by a judge as not giving credible testimonies can be two different situations. Currently, there are legal and administrative mechanisms to deter such from happening.

     In respect of wilful perjury, under Section 31 of the Crimes Ordinance (Cap 200), if any person lawfully sworn as a witness, either generally or in a particular judicial proceeding, wilfully makes a statement in any judicial proceeding which is material in that proceeding and which he knows to be false or does not believe to be true, he shall be guilty of perjury and shall be liable on conviction upon indictment to imprisonment for seven years and to a fine.

     If in certain cases, the court considers that there is prima facie evidence suggesting perjury by a witness (including police officers), the court may refer the case to the DoJ for follow-up. If the DoJ gives instructions after receiving referral from the court, the Police will seriously handle any case of non-compliance where a police officer is suspected to have committed perjury. Depending on the investigation results, the officer concerned may be liable to criminal responsibility and also subject to disciplinary actions.

     Separately, if a judge considers that the testimonies given by a police officer in court are not credible, he may advise the DoJ to refer the case for follow-up by the Complaints Against Police Office of the Police and inform the court in writing of the results of the case after it has been dealt with.

     In respect of compensation, while hearing cases, the court may give its rulings on the court costs. Besides, if there are sufficient grounds, relevant persons may also initiate a civil litigation to seek monetary compensation.

     Hon Wong's question mentions a case related to a mentally incapacitated person (MIP). In June 2015, the Police formed a working group to, in collaboration with relevant government departments and experts, re-examine the policies for handling cases involving MIPs and the guidelines of investigation, explore the means to enhance and optimise investigation work, and study the ways to further augment frontline police officers' training in handling relevant tasks. The HKSAR Government has explained the work of the above-mentioned working group at the Legislative Council (LegCo) Panel on Welfare Services in June last year, as well as in the reply to a LegCo written question in December last year.

     The working group has already held a number of meetings. One of the work priorities is to give consideration to the more effective adoption of multi-agency co-operation, which includes the need to seek professional assistance in the handling of MIPs. Furthermore, as far as training is concerned, given that the current training programmes for frontline police officers on the handling of MIPs are mainly conducted by instructors of the Police, the working group will consider stepping up co-operation with professionals of other departments as well as other stakeholders in the realm of training. In addition, the working group will review whether the current mode of training, mainly in the form of classroom instruction, is the most effective, including the need to strengthen other modes of training like role-playing and field training, so that frontline police officers will have a better grasp of the skills in handling cases involving MIPs.

     Thank you, President.

Ends/Wednesday, June 15, 2016
Issued at HKT 17:03


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