K K Chan v Hong Kong Police Force
Anderson Chow J
24, 26 June, 19 November 2020

Facts

These were five applications for judicial review. One issue was common to all the applications. Two additional issues were raised in HCAL 2915/2019 brought by the Hong Kong Journalists Association. One of these additional issues was heard separately and would be dealt with in a separate judgment. The common issue was whether police officers were required to display their unique identification numbers or other distinctive identification numbers or marks when carrying out non-covert duties in relation to recent public order events under the operation known as “Operation TIDERIDER”. As for the additional issue dealt with in the present case, it was whether the Government was under a duty to make available an independent mechanism capable of conducting effective investigation into complaints of ill-treatment by police officers. Principal among the provisions relied upon by the applicants was the prohibition by art.28 of the Basic Law of torture and the prohibition by art.3 of the Hong Kong Bill of Rights of torture and of cruel, inhuman or degrading treatment or punishment (BOR 3).

Held, acceding to HCAL 2671, 2703 and 2915/2019 to the extent of the following holdings, and refusing leave in HCAL 1747 and 1753/2019, that:

1. Identification of police officers could not be merely through the internal processes of the Police Force, for that would leave victims of police ill-treatment entirely or largely at the mercy of the Force’s decision whether to take legal or disciplinary action against officers responsible for such ill-treatment (Ataykaya v Turkey (Application No 50275/08, 22 July 2014), Bouyid v Belgium (2016) 62 EHRR 32, D v Commissioner of Police of the Metropolis [2019] AC 196 applied). (See para.95.)
2. The Court was fully alive to police officers’ concern over disclosing their identities having regard to the rampant doxxing campaigns mounted against them. As a matter of principle, however, such concern cannot of itself override the duty to maintain an adequate system to investigate suspected cases of breach of BOR 3 (Hristovi v Bulgaria (Application No 42697/05, 11 October 2011), Hentschel and Stark v Germany (Application No 47274/15, 9 November 2017) applied). (See para.98.)
3. Leave must be refused in HCAL 1747/2019 because it relied only on an alleged misinterpretation or misapplication of certain provisions, and no such misinterpretation or misapplication had been proved. (See para.112.)
4. To comply with the procedural duty under BOR 3, investigation must be independent, institutionally and in a practical way, of suspected perpetrators. The Complaints Against Police Office (the CAPO) was not independent of the police, and the Independent Police Complaints Council (the IPCC) lacked the necessary investigative powers and the power to make binding determinations. The existing two-tier mechanism for handling complaints against the police, with the CAPO carrying out the first tier and the IPCC carrying out the second tier, failed to meet the requirement of independent investigation under the procedural limb of BOR 3 (Ramsahai v Netherlands (2008) 46 EHRR 43, Mikiashvili v Georgia (Application No 18996/06, 9 October 2012), Najafli v Azerbaijan (Application No 2594/07, 2 October 2012), Tunc v Turkey (Application No 24014/05, 14 April 2015), Hentschel and Stark v Germany (Application No 47274/15, 9 November 2017) applied). (See paras.46, 101–103.)
5. The applicants in HCAL 2671, 2703 and 2915/2019 had standing, but the applicants in HCAL 1753/2019 did not. (See paras.120–121.)
6. It was declared in HCAL 2671, 2703 and 2915/2019 that the failure of the Commissioner of Police to establish and maintain an effective system to ensure that every police officer deployed in carrying out non-covert duties in Operation TIDERIDER wore and prominently displayed an identification number or mark which was unique to that officer violated BOR 3. (See para.123.)
7. The order of mandamus sought in HCAL 2703/2019 was refused because it was, in principle a matter for the Commissioner of Police to devise an appropriate system to meet the foregoing declaration. (See para.127.)
8. In HCAL 2915/2019, it was further declared that the Government was under a duty, pursuant to BOR 3, to establish and maintain an independent mechanism capable of conducting effective investigation into complaints of suspected ill-treatment by police officers in contravention of BOR 3, and that the existing mechanism involving CAPO, with oversight by the IPCC, was inadequate to discharge this obligation. (See para.124.)

Applications

These were five applications for judicial review against the Commissioner of Police and Secretary for Justice raising inter alia the issues of whether officers of the Hong Kong Police Force were required to display their unique identification numbers or other distinctive identification numbers or marks when carrying out non-covert duties in relation to recent public order events; and whether the Government was under a duty to make available an independent mechanism capable of conducting effective investigation into complaints of ill-treatment by police officers.

Editorial Note: This judgment, particularly as reflected in the second of the foregoing holdings, illustrates the sort of rival considerations which the courts are required to weigh and balance in situations of this nature.

Jurisdictions: