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Fair Just Open
Chapter 6 - Cases of Interest
Reason for Reporting Individual Cases
Selection of Cases for Reporting
Anonymity
Case Summaries
Case 1 Case 2
Case 3 Case 4
Case 5 Case 6
Case 7 Case 8
Case 9 Case 10
Case 11 Case 12
Case 13 Case 14
Case 15 Case 16
Case 17 Case 18
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Case Summaries
 
Case 5
Unnecessary Use of Authority – No Fault
Unnecessary Use of Authority – No Fault
Unnecessary Use of Authority – No Fault
Unnecessary Use of Authority – No Fault
Misconduct – No Fault
Unnecessary Use of Authority – No Fault
Unnecessary Use of Authority – No Fault
Neglect of Duty – Unsubstantiated
 
6.34 Members of an organization staged a continual sit-in with banners and placards at a section of a pavement outside a building. Upon receipt of complaints from nearby shop-owners and residents about the nuisance and obstruction caused by the protest, the Police issued a number of warnings to the protesters demanding them to remove their banners. However, the protesters paid no heed to the warnings and consequently, a joint-departmental operation involving the District Office, Food and Environmental Hygiene Department (FEHD) and the Police was mounted to remove the offending banners and placards.
 
6.35 Complainants (COMs) 1 and 2, who were members of the organization, subsequently lodged eight allegations against the Police. COM 1 alleged that:
 
 
(a) The Police were biased and targeted the organization ((a) ‘Unnecessary Use of Authority’);
 
(b) The Police used excessive force in removing the banners from members of the organization ((b)‘Unnecessary Use of Authority’);
 
(c) Police officers solicited complaints against the organization from residents of a nearby building in a deliberate attempt to gather evidence to force the protesters away ((c) ‘Unnecessary Use of Authority’);
 
(d) The Police videotaped the activities of the organization. The videotaping interfered with the freedom of expression of members of the organization and gave members of the public the impression that their activities were illegal ((d) ‘Unnecessary Use of Authority’);
 
(e) The Police lied to the District Officer that they had sent more than ten warning letters to instruct members of the organization to remove their banners ((e) ‘Misconduct’);
 
(f) The Police’s warning to the protesters to remove a banner which contained a slogan was an interference with their freedom of speech ((f) ‘Unnecessary Use of Authority’); and
 
(g) The Police repeatedly threatened the protesters to remove the banners and this infringed on their right of expression ((g) ‘Unnecessary Use of Authority’).
 
6.36 COM 2 further alleged that (h) the Police had been dilatory in handling his request for the return of the seized banners ((h) ‘Neglect of Duty’).
 
6.37 After investigation, CAPO classified all the allegations as ‘No Fault’.
 
6.38 For allegation (a) ‘Unnecessary Use of Authority’, CAPO explained that there was no evidence to prove that the Police were biased and targeted the organization. The interdepartmental meeting with FEHD and District Office (Central and Western) concluded that the display of banners was a contravention of Public Health and Municipal Services Ordinance, Cap 132. As the law was considered straight forward, it was unnecessary to seek legal advice prior to the clearance. Moreover, as the FEHD was the lead department in the joint-departmental operation and the Police only assisted the FEHD in the clearance operation, it was within the FEHD’s purview to seek legal advice on the operation if deemed necessary.
 
6.39 For allegation (b) ‘Unnecessary Use of Authority’, CAPO maintained that the videotape revealed that the Police acted in a restrained and polite manner and no excessive force was used. After repeated warnings issued by FEHD and the Police were ignored, police officers then assisted FEHD to remove the banner. When enquired by the Police subsequently, three protesters sought medical treatment and were found to have sustained minor injuries during the incident.
 
6.40 For allegation (c) ‘Unnecessary Use of Authority’, after obtaining legal advice from the Department of Justice regarding the complaint received, the Police had a reasonable belief that an offence of obstruction was committed by the protesters. In the absence of any identifiable complainant, it would have been impossible to adequately resolve the matter. Therefore, door-to-door enquiry was subsequently conducted, which was a normal and common police action and an operational decision based on the merits of an individual case.
 
6.41 For allegation (d) ‘Unnecessary Use of Authority’, CAPO explained that the Police videotaped the protest for gathering evidence and for record purpose. This was in line with the internal order of the Police. Moreover, preliminary legal advice confirmed that there appeared to be a prima facie case for the ‘obstruction’ offence. The Police, therefore, was required to conduct further investigation and collect evidence by close-up shots in order to identify the alleged offenders. All the close-up shots were taken at a distance with zoom lens and it should not have brought about an intimidating effect on the protesters.
 
6.42 For allegation (e) ‘Misconduct’, CAPO clarified that the allegation arose out of a misunderstanding between COM 1 and the staff of the District Office.
 
6.43 For allegation (f) ‘Unnecessary Use of Authority’, CAPO opined that the banner in question had caused a breach of the peace and the Police acted in good faith to deliver a warning to the protesters to prevent the recurrence of untoward incidents. Before the warning was issued, the Police had increased local patrols to protect the protesters and laid a covert ambush in the area with a view to apprehending the culprits who threw plastic bags containing suspected urine to the protesters. Although the warning was ignored, the Police did not take any action to prohibit the display of the banner in question.
 
6.44 For allegation (g) ‘Unnecessary Use of Authority’, CAPO maintained that the warnings were given in good faith and the Police, after considering the initial legal advice, believed that there was prima facie evidence against the protesters for ‘Obstruction’.
 
6.45 For allegation (h) ‘Neglect of Duty’, CAPO explained that the Police had asked an official representative of the organization to submit a request letter in order to ensure that the receipt was issued to a bona-fide representative. However, the Police never received such a letter from the organization.
 
6.46 After examining CAPO’s explanation, the IPCC concluded that it was more appropriate to classify all the allegations, except allegation (e) ‘Misconduct’, as ‘Substantiated’.
 
6.47 Regarding allegation (a) ‘Unnecessary Use of Authority’, the IPCC considered that the Police had no legal basis for their clearance operation as the legal advice sought by the FEHD after the operation was that the evidence did not establish a case of obstruction. In fact, the CAPO investigation report indicated that shortly before the operation, the Police itself was seeking legal advice as to the appropriateness of taking summonsing actions and the Police’s future actions under the relevant Ordinances in relation to the prolonged occupation of a public place and the unauthorized display of banners by the protesters. The IPCC was of the view that the Police should have deferred action until the legal advice on these two aspects were available. Moreover, the sequence of events leading to the clearance operation and the caution displayed by the FEHD both before and after the operation demonstrated that the Police was in the driving seat rather than merely assisting the FEHD in the clearance operation as claimed. Even if the Police was responding to the FEHD’s request for assistance, they should ensure that the FEHD’s action was lawful in the first place.
 
6.48 Regarding allegation (b) ‘Unnecessary Use of Authority’, the IPCC opined that this was closely related with allegation (a). As there was no legal foundation for the clearance operation, the classification of allegation (b) should follow that of allegation (a).
 
6.49 Regarding allegation (c) ‘Unnecessary Use of Authority’, the IPCC considered that since the alleged offence of obstruction and nuisance was minor in nature and as CAPO could not substantiate its assertion that door-to-door enquiry was a normal police operational practice in investigating minor obstruction and nuisance reports with no criminal elements, the allegation should be classified as ‘Substantiated’.
 
6.50 Regarding allegation (d) ‘Unnecessary Use of Authority’, the IPCC noted that in accordance with the relevant Police Order for recording public order events, the over-riding principle is that "it is the event, not the personalities involved, that is the subject. Only if a breach of peace is likely to occur, or has occurred, do the individuals suspected of causing that breach become the subject". As apparently there was no actual or imminent breach of the peace at the material time, the taking of 114 close-up shots of individuals was not justifiable. ‘Detection of offences’ could not and should not be used as the sole reason to videotape individual citizens indiscriminately.
 
6.51 Regarding allegation (e) ‘Misconduct’, the IPCC accepted the ‘No Fault’ classification because the allegation arose out of a misunderstanding between the complainant and the staff of the District Office.
 
6.52 Regarding allegation (f) ‘Unnecessary Use of Authority’, the IPCC opined that although the content of the banner in question might not be agreeable, it did not go beyond the bounds of free expression of opinion. In relation to the argument that the banner in question might cause a breach of the peace, IPCC took the view that the crucial question was to identify where the threat was coming from and it was there that preventive action must be directed. Instead of issuing warnings to the protesters, the Police should protect the protesters’ freedom of expression and take necessary action to prevent the recurrence of untoward incidents.
 
6.53 Regarding allegation (g) ‘Unnecessary Use of Authority’, the IPCC concluded that this was related to allegations (a), (b) and (f) and the Police should not have issued warnings to the protesters without waiting for fuller advice.
 
6.54 Regarding allegation (h) ‘Neglect of Duty’, the IPCC noted that there was no requirement under existing police procedures that the request for return of the banners must be made in writing. As such, as long as the Police were satisfied that the claimants were the actual possessors from whom the banners were seized at the material time, the Police should return the banners to them.
 
6.55 The case was subsequently discussed at three Joint IPCC/CAPO Meetings. After discussion, CAPO only agreed to re-classify allegation (h) ‘Neglect of Duty’ as ‘Unsubstantiated’ and maintained that the remaining classifications be upheld. For allegation (h) ‘Neglect of Duty’, CAPO reckoned that the police officer concerned might be over-cautious when dealing with COM 2’s request but he did it in good faith and there was no evidence which suggested that he deliberately withheld the receipt. The police officer concerned would be advised without an entry in his divisional record file that he should act flexibly in future and consider other means to confirm the owner’s right to the property.
 
6.56 In view of the divergent views between the IPCC and CAPO on the majority of the classifications of the allegations, the IPCC reported the case to the Chief Executive for a decision on the classifications of the allegations.
 
6.57 In response, the Chief Executive gave his decision on the complaint case. The gist of his reply was as follows:
 
 
(a) He agreed with the IPCC that the Police should ensure that the rights of the protesters were protected. In the present case, it was considered that the Police did not attempt to suppress the civil rights of members of the organization. The warnings relating to the banners displayed were justified as the Police also had the duty to protect the rights of other people affected by the protests. The legal powers exercised by the FEHD in the banner removal operation were in respect of the unauthorized display of banner on government land. Legal advice sought by the Police on the separate offence of obstruction would not affect consideration of the need to render assistance to FEHD in the latter's exercise of its powers in respect of the unauthorized display of barrier on government land;
 
(b) In the incident, it was believed that the Police acted in good faith and in full accord with their internal guidelines. Accordingly, CAPO’s findings were in order; and
 
(c) The IPCC had made a number of valuable points and observations in the course of reviewing the investigation of the complaint. The Police would take these into serious consideration with a view to improving their work and continue to uphold the law without bias or political consideration.
 
6.58 The Chief Executive’s reply letter to the IPCC brought the complaint case to a close.
 
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