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The Hong Kong Journalists Association v The Commissioner Of Police And Another

Judgment Cited authorities 9 Cited in Precedent Map Related
Vincent
Judgment Date19 November 2020
Neutral Citation[2020] HKCFI 2882
Year2020
Judgement NumberHCAL2915/2019
Subject MatterConstitutional and Administrative Law Proceedings
CourtCourt of First Instance (Hong Kong)
HCAL1747/2019 陳基裘 v. 香港政府警務處

HCAL 1747/2019,
HCAL 1753/2019,
HCAL 2671/2019,
HCAL 2703/2019 &
HCAL 2915/2019

[2020] HKCFI 2882

HCAL 1747/2019

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1747 OF 2019

________________________

BETWEEN
陳基裘 Applicant

and
香港政府警務處 Putative Respondent

________________________

and

HCAL 1753/2019

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1753 OF 2019

________________________

BETWEEN
郭卓堅 1st Applicant
梁頌恆 2nd Applicant

and
保安局局長李家超 1st Putative
Respondent
警務處處長盧偉聰 2nd Putative
Respondent

________________________

and

HCAL 2671/2019

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2671 OF 2019

________________________

BETWEEN
YEUNG TSZ CHUN Applicant

and
COMMISSIONER OF POLICE Putative
Respondent

________________________

and

HCAL 2703/2019

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2703 OF 2019

________________________

BETWEEN
CHAN KUNG SHUN (陳恭信) 1st Applicant
LO CHAM SZE (魯湛思) 2nd Applicant
NG HONG LUEN (吳康聯) 3rd Applicant

and
COMMISSIONER OF POLICE Putative
Respondent

________________________

and

HCAL 2915/2019

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2915 OF 2019

________________________

BETWEEN
THE HONG KONG JOURNALISTS ASSOCIATION Applicant

and
THE COMMISSIONER OF POLICE 1st Putative
Respondent
SECRETARY FOR JUSTICE 2nd Putative
Respondent
________________________
(Heard together)
Before: Hon Chow J in Court
Dates of Hearing: 24 & 26 June 2020
Date of Judgment: 19 November 2020

________________________

JUDGMENT

________________________

This Judgment shall be divided into the following Sections:

Contents
Paragraphs
I Introduction
1-3
(i) HCAL 1747/2019
4-5
(ii) HCAL 1753/2019
6-8
(iii) HCAL 2671/2019
9-10
(iv) HCAL 2703/2019
11-12
(v) HCAL 2915/2019
13-16
II The commissioner’s factual case on display of UI Numbers or other identifying insignia by police officers
17
(i) Insignia Policy for uniformed officers (other than STC officers) and plainclothes officers prior to 27 November 2019
18-23
(ii) “Call-Sign” after 27 November 2019
24-26
(iii) Disclosure of identity and warrant cards under PGO
27-30
(iv) STC Insignia Policy
31-40
III Identification of police officers by CAPO
41-45
IV Two-tier mechanism for handing complaints against police officers
46
(i) CAPO
47-56
(ii) IPCC
57-64
V Violation of the procedural duty under BOR 3
(i) BOR 3 prohibits use of unnecessary or excessive force by police officers
65-68
(ii) Positive duty to investigate suspected cases of breach of BOR 3
69-77
(iii) The investigation must be capable of leading to identification of the police officers involved in the application of ill-treatment
78-83
(iv) Particular need for display of distinctive insignia where masked officers are deployed
84-88
(v) Duty to put in place an effective system of investigation
89-92
(vi) Victims of police ill-treatment are entitled to reasonable identification of the police officers concerned
93-95
(vii) Current system of disclosure of police identities and investigation fails to meet the procedural duty under BOR 3
96-103
VI No misinterpretation or misapplication of PGO or PFO
104-118
VII Standing and exhaustion of alternative remedies
119-122
VIII Disposition
123-129

I INTRODUCTION

1. There are five applications for judicial review before the court. In each of them, the issue is raised as to whether officers of the Hong Kong Police Force (“the Force”) generally, or those in some specific units, namely, anti-riot police officers (防暴警察) (“AR officers”) and police officers belonging to the Special Tactical Contingent (特別戰術小隊, commonly known as 速龍小隊) (“STC officers”), are required to display their unique identification numbers (“UI Numbers”) or other distinctive identification numbers or marks when carrying out non-covert duties in relation to the recent public order events arising out of the now withdrawn Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019 (“the Bill”).

2. In HCAL 2915/2019, an application brought by Hong Kong Journalists Association (“HKJA”), two additional issues are raised, namely:

(1) whether the Government is under a duty to facilitate, and not to hinder, lawful journalistic activities in the course of the public order events on and after 12 June 2019, and whether it has failed to observe such duty; and

(2) whether the Government is under a duty to make available an independent mechanism capable of conducting effective investigations into complaints of ill-treatment by police officers.

3. The issue identified in §2(1) above was heard separately, and will be dealt with in a separate judgment.

(i) HCAL 1747/2019 [1]

4. This application concerns the public order event occurring on 12 June 2019 when tens of thousands of protestors blocked roads around the Central Government Offices and the Legislative Council Complex to call on the Government to withdraw the Bill. The Force deployed, inter alia, STC officers to clear the protestors from occupying the main thoroughfare near the Central Government Offices and the Legislative Council Complex. According to the applicant (“Mr K K Chan”), the STC officers generally did not display their UI Numbers. Mr K K Chan also alleges that when police officers, including STC officers, were carrying out the clearance operations, they used unnecessary or excessive force and weapons, including rubber bullets, beanbag shots, tear gas and pepper spray, against largely unarmed protestors and journalists. Mr K K Chan says that he himself was subject to “discourteous treatment and verbal abuse” by some STC officers in Harcourt Garden, Admiralty, at about 8:00 pm on 12 June 2020, and “decided” to make a complaint to the Complaints Against Police Office (“CAPO”). However, he was unable to identify any of the STC officers involved, because none of them had their UI Numbers displayed on their uniforms. Besides, they were all wearing masks at the material time. According to the evidence filed on behalf of the Commissioner of Police (“the Commissioner”), Mr K K Chan has not, as a matter of fact, made any complaint to CAPO in respect of the alleged incident on 12 June 2019[2].

5. In his draft Amended Form 86 dated 16 September 2019, Mr K K Chan challenges an alleged decision of the Commissioner -

“made on or about 12 June 2019 and thereafter that during police operations from or about 12 June 2019 and thereafter [STC officers] were not to, or need not, display their [UI Numbers] or ranks on their uniforms”,

on a single ground, namely, that such decision -

“was unlawful and/or unconstitutional because it is premised on a misinterpretation or misapplication of the HKPF’s own set of internal guidelines regulating the dress and appearance of UB Officers, in particular PGO §15” [3].

(ii) HCAL 1753/2019 [4]

6. This application concerns two alleged decisions of the Commissioner, namely, the decisions:

“to equip [STC officers] with uniform not identifying themselves individually whilst carrying out its duties, effective between January 2017 to a date on or around 13th June 2019 and/or the policy to allow them to do so”;

and

“to equip [STC officers] with uniform not identifying themselves individually whiles carrying out its duties effective since 14th June 2019 and/or the policy to allow them to do so”.

7. Two grounds of judicial review are raised in the draft Amended Form 86 dated 11 September 2019:

(1) breach of Article 3 of the Hong Kong Bill of Rights (“BOR 3”);

(2) illegality under common law and/or breach of §20-03 of the Police General Order (“PGO”) and/or breach of s 22 of the Police Force Ordinance, Cap 232 (“PFO”).

8. It is not alleged in the draft Amended Form 86 that the applicants (“Mr Kwok” and “Mr Leung”) had any direct dealings with, or were subjected to any ill-treatment by, STC officers during the period from January 2017 onwards, or that the decisions that they complain of have caused them any personal or direct harm, loss or damage. However, in their respective affirmations dated 11 September 2019 and 12 September 2019, Mr Kwok and Mr Leung say that they personally participated in a number of public assemblies or processions relating to the Bill between 31 March 2019 and 31 August 2019, and there were occasions when STC officers were deployed by the Commissioner to carry out duties but they were unable to identify those officers individually.

(iii) HCAL 2671/2019 [5]

9. The Applicant (“Mr Yeung”) was a participant in a public order event which occurred on 12 June 2019 in the vicinity of the Central Government Offices and Legislative Council Complex, in the course of which he suffered, inter alia, injuries to his right eye, having apparently been shot by an object coming from the direction of a group of STC officers who had form a cordon line outside the Chinese...

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