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Civil Rights and Obligations

This is general information only and not legal advice. It is not exhaustive. Any specific circumstances should be carefully considered and legal advice sought as needed. All references to “Hong Kong” in this document and any other HK Neutral Legal Observer Group (“HK NLOG”) materials are to the Hong Kong Special Administrative Region of the People’s Republic of China.

Basic Law

https://www.basiclaw.gov.hk/en/basiclawtext/chapter_3.html

Article 25: All Hong Kong residents shall be equal before the law

Article 27: Hong Kong residents shall have the freedom of speech, of the press and publication, freedom of association, of assembly, of procession and of demonstration, and the right and freedom to form and join trade unions, and to strike

Article 28: The freedom of the person of Hong Kong residents shall be inviolable. No Hong Kong resident shall be subjected to arbitrary or unlawful arrest, detention or imprisonment. Arbitrary or unlawful search of body of any resident or deprivation or restriction of the freedom of the person shall be prohibited. Torture of any resident or arbitrary or unlawful deprivation of the life of any resident shall be prohibited.

Article 29: The homes and other premises of Hong Kong residents shall be inviolable. Arbitrary or unlawful search of, or intrusion into, a resident’s home or other premises shall be prohibited.

Article 30: The freedom and privacy of communication of Hong Kong residents shall be protected by law. No department or individual may, on any grounds, infringe upon the freedom and privacy of communication of residents except that the relevant authorities may inspect communication in accordance with legal procedures to meet the needs of public security or of investigation into criminal offences.

Article 35: Hong Kong residents shall have the right to confidential legal advice, access to the courts, choice of lawyers for timely protection of their lawful rights and interests or for representation in the courts, and to judicial remedies.

Article 35: Hong Kong residents shall have the right to institute legal proceedings in the courts against the acts of the executive authorities and their personnel.

Article 42: Hong Kong residents and other persons in HK shall have the obligation to abide by the laws in force in the HKSAR.

Rule of Law

The Basic Law ensures that the legal system in the HKSAR will continue to give effect to the rule of law

  • The rule of law begins with equality before the law
  • It governs the way in which power is exercised in Hong Kong. No one, including the Chief Executive, can commit an act which would constitute a legal wrong or affect a person’s liberty unless there is a legal justification for that act
  • If there is no legal justification for the act, the affected person can apply to a court for a ruling that the act is invalid and of no legal effect
Arrest & Detention
  • Arrest
    • Must be informed of the offence for which the police officer reasonably suspects the person being arrested is guilty of
    • No warrant is required: section 50(1) Police Force Ordinance
    • Reasonable suspicion: based on objective facts and information available
    • Not obliged to go to the police station if merely to assist in investigation
  • Cautioning: “You are not obliged to say anything unless you wish to do so but what you may say be put into writing and given in evidence”
  • Cautioned Statement
    • Anything said under caution upon arrest may be tendered as evidence in court
    • Would be recorded in a police notebook (pink in colour)
    • Arrested person would be asked to sign and confirm what is recorded as being a true and accurate record of the cautioned statement
  • Taking Statements: see below for “The Right to Silence”
  • Taking of forensic samples e.g. fingerprints, taking picture, blood sample, etc.
  • Notice to Persons in Police Custody (Pol 153)

    An arrested person should be given the Notice which sets out his entitlement to the following rights:

    • Seeking legal assistance
    • Telling someone that you are at a police station
    • Communicating with a relative or friend
    • Receiving copies of written record under caution
    • Communications with consulate if you are a foreign national
    • Notification to consulate if you are a foreign national
    • Provision of food and drink
    • Seeking medical attention
    • Requesting for release or admittance to bail
  • The Right to Silence

    Defend your/your client’s right to silence at every opportunity

    • Lawyer to request to interview and advise client in private inside the police station before taking part in any interviews
    • Be alert to the possibility of being overheard/recorded
    • Confirm:
      1. Detainee’s instructions
      2. Whether any admissions/interviews have been made
      3. Whether medical treatment is required
      4. Whether detainee wishes to be provided with foo
      5. Whether detainee has been assaulted by the police (and make complaint, take photos or other necessary actions), etc
    • Clearly explain to detainee of his right to silence and that he has no duty to answer any questions
    • IMPORTANT: make contemporaneous record of events if genuine belief that the police are delaying unreasonably
  • Article 11(2g) of section 8, Hong Kong Bill of Rights Ordinance (Cap. 383)
    • A person may in general refuse to answer any question posed by a police officer
    • “I have nothing to say” or “I do not wish to answer any questions” (different to “I don’t know” or “I don’t remember.”)
  • Defend your rights
    • The right to be given a copy of any admissions/confessions/statements made
    • The right to legal representation
    • The right to medical treatment, refreshment and rest periods
    • Right of refusal to take part in any identification parade (but note that you may then be subject to ID in the dock at trial)
Bail or Custody
  • Discretionary
  • Presumption of entitlement to Bail
    • “It shall not be the general rule that persons awaiting trial shall be detained in custody but release may be subject to guarantees to appear for trial.”: HK Bill of Rights Article 5(3)
    • Foundation: Presumption of Innocence
      1. Discretionary: “a court SHALL order an accused person to be admitted to bail, whether he has been committed for trial or not…”: section 9D Criminal Procedure Ordinance
      2. Rebuttable: bail may be refused in certain circumstances: section 9G Criminal Procedure Ordinance
  • Section 52 Police Force Ordinanc
    • Police Bail: Normally cash bail, Usually no bail for serious charge e.g. treason, murder, etc
    • Court Bail “48 hour” rule: be brought before a magistrate so far as is practicable within 48 hours if custody or conditional bail is required.
Home search
  • Police officers may request home searches of arrested persons.
  • Police officers will only need to apply to the Court for a search warrant if NO consent is given by the arrested person.
  • Chances of the arrested person being granted bail quicker after a consented home search.
  • Advisable for a legal professional / family members / friends to be present with the arrested person during the home search
Collating Evidence & Formulating a Complaint against Certain Bodies
For trial hearings
  • An out of court statement made against the interest of the maker is admissible as evidence for the prosecution in a criminal trial. This is an exception to the rule against hearsay.
  • When the prosecution alleges that the defendant made an admission to the police (or an officer of the other enforcement agencies) but the defendant’s case is that he/she did not make the oral admission and that he was ill-treated by the police before/ at the time of the alleged admission, the defendant may invite the court to rule out the admission by way of
    • Voir dire; and
    • Alternative procedure: s41(3) Criminal Procedure Ordinance
  • Inducement: If caused by “fear of prejudice/ hope of reward exercised or held out by anyone in authority”
  • Oppression: “Conduct which tends to sap, and has sapped, the free will of the accused so that he speaks when otherwise he would have remained silent”
  • Whilst the court may rule the admissibility of an admission on grounds that the defendant is ill-treated, it will normally not deal with the complaints against the police.
For police misconducts
  • Complaints Against Police Office (CAPO)
    https://www.police.gov.hk/ppp_en/11_useful_info/cap.html
    • How: Lodge complaint to the report room of any police station in person OR to the Reporting Crime of the CAPO in writing, by telephone/fax/email
    • About what: The conduct of a member of the police OR Any practice or procedure adopted by the police force and feel aggrieved about it
    • “Expression of Dissatisfaction” will be dealt with by way of informal resolution/conciliation without lodging a formal complaint
    • “Formal Complaint” will be looked into by the CAPO
  • Independent Police Complaints Council
    • Lodge complaint in writing, by phone calls or in person
    • Fill in standard complaints form for specific event e.g. recent public protests
    • Name and contact be provided only on a voluntary basis
    • Unnecessary to disclose anything that may incriminate the informant
  • Independent Commission of Inquiry
    • Set up under the Commission of Inquiry Ordinance (Cap 86)
      1. Vested with investigative powers, including the power to summon individuals to testify before the commission
      2. All evidence given before a commission is “absolutely privileged”, meaning information revealed during the hearings cannot be used in civil or criminal legal proceedings
      3. Witnesses testifying can enjoy immunity to criminal civil liability
    • Commission to publish a report and make recommendations on how to enhance the credibility of law enforcement and prevent similar incidents from happening again
    • Suitable for major events or tragedies, examples including 1993 Lan Kwai Fong stampede, 1996 riot inside the Whitehead detention center where Vietnamese boat people lived, 2015 excess lead found in drinking water
Basic Criminal Law Guidelines
3 Courts with Original Jurisdiction
Courts Source of Power Sentencing Powers Appeal to
Magistrates’ Courts
  • Magistrates’ Ordinance (Cap 227)
  • Criminal Procedure Ordinance (Cap 221)
Generally speaking, a maximum of 2 years
  • First to the Court of First Instance
  • Then to the Court of Final Appeal
The District Court
  • Part V of the District Court Ordinance (Cap 336)
  • Part IV of the Magistrates’ Ordinance (Cap 227)
A maximum of 7 years
  • First to the Court of Appeal
  • Then to the Court of Final Appeal
The Court of First Instance
  • Criminal Procedure Ordinance (Cap 221)
  • Magistrates’ Ordinance (Cap 227) for committal proceedings-
  • Unlimited power
  • Restricted only by the maximum listed for the offence
  • First to the Court of Appeal
  • Then to the Court of Final Appeal
To Charge or Not to Charge
  • The decision to prosecute
    • Police or Department of Justice (DOJ)
    • The gravity of the offence: depend on (1) the extent of the harm or loss suffered by the victim; (2) the significance of the harm or loss may be relative to the circumstances of the victim
  • Alternatives to Trial
    • Discontinue a prosecution: Offer no evidence
    • Accept an adjusted plea to a lesser charge: e.g. Assault Occasioning Actual Bodily Harm → Common Assault
    • Binding over: offer no evidence and bind over
    • See: Prosecution Code 2013
  • First appearance in court of an arrested person: always the Magistrates’ Court
    • Plea
      1. If plead guilty → Plea in Mitigation
      2. Sentence reduction for Early Plea: ⅓ discount before trial date, ⅕-¼ discount at trial
    • No Plea → Bail / No Bail
    • Fixing a trial date
  • Subsequent Hearings
    • Mention
    • Pre-trial Review
    • Transfer to the District Court
    • Committed to the High Court: Committal Proceedings in Eastern Court No 7
      1. Preliminary Inquiry: to determine whether there is sufficient evidence to justify the committal
      2. Paper Committal (also as short committal)
Emergency Regulations Ordinance
Application
  • On any occasion which the Chief Executive in Council may consider to be an occasion of emergency or public danger
  • CE in Council may make regulations whatsoever which he may consider desirable in the public interest
  • Such regulations may cover the following aspects:
    • Censorship, and the control and suppression of publications, writings, communications and means of communications
    • Arrest, detention, exclusion and deportation
    • Transportation and the control of the transport of persons and things
    • Appropriation, control, forfeiture and disposition of property, and of the use
    • Authorizing the entry and search of premises
    • The taking of possession or control on behalf of CE of any property or undertaking
  • The regulations shall continue in force until repealed by order of the CE in Council
  • Not used since 1967 riots
Possible encroachment of civil rights
  • Would the regulations made under ERO result in disproportionate and unconstitutional infringement of civil rights?
  • Hysan Development v Town Planning Board, FACV No. 21 of 2015
    • What is the permissible extent of any restrictions that limit the constitutionally protected rights of the individual?
    • Has a reasonable balance been struck between the societal benefits of the encroachment and the inroads made into the civil rights? Does the pursuit of the societal interest result in an unacceptably harsh burden on the individual?
    • Is the intruding measure “no more than necessary” to achieve the legitimate aim? Or is it “manifestly without reasonable foundation”?
Criminal Offences
  • Unlawful assembly (Section 18 of the Public Order Ordinance)
    • Three or more persons, assembled together, conduct themselves in a disorderly, intimidating, insulting or provocative manner intended or likely to cause any person reasonably to fear that the person so assembled will commit a breach of the peace, or will by such conduct provoke other persons to commit a breach of the peace
    • Maximum penalty: 5 years imprisonment
    • Secretary for Justice v Chow Yong Kang Alex [2018] HKCFA 4: immediate custodial sentence now likely for those engaging in violent behaviour, peaceful participants usually receive a community service order or a suspended sentence
  • Unauthorised assembly (section 17A(3) of the Public Order Ordinance)
    • Knowingly taking part or continuing to take part in or forming or continuing to form part of an unauthorized assembly
    • “Unauthorized assembly”
      1. Public meeting of more than 50 people or a public procession of more than 30 people notified to the commissioner of police
      2. A meeting where the police have issued a notice of prohibition
    • Maximum penalty: 5 years imprisonment
    • Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229: bind-over order for 3 months for holding unauthorized assembly
  • Rioting (Section 19 of the Public Order Ordinance)
    • Taking part in an unlawful assembly where any person taking part in the assembly commits a breach of the peace
    • “Breach of the peace” means violent acts regardless of whether injury or damage has occurred: 香港特別行政區 訴許嘉琪及另二人 [2017] HKCU 1017
    • Mere presence may suffice if the presence supported and/or encouraged others to take part in a riot: 香港特別行政區 訴 莫嘉濤及另八人 [2018] HKCU 1406
    • Maximum penalty: 10 years imprisonment
  • Obstructing Police Officer in execution of duty (Section 36 (b) of the Offences Against the Person Ordinance)
    • Occurs when a person assaults, resists, or wilfully obstructs any police officer in the due execution of his duty or any person acting in aid of such officer
    • Threshold is very low: making it more difficult for the police to carry out their duties would suffice, although it does not include conduct which causes mere inconvenience or requiring “trifling” additional effort.
    • Maximum penalty: 2 years’ imprisonment
    • HKSAR v Tam Lap Fai (2005) 8 HKCFAR 216: community service order for punching a police officer, a short custodial sentence is also common depending on circumstances
  • Criminal Damage (Simple Offence)
    • Without lawful excuse, destroys or damages any property belonging to another, intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged
    • Maximum penalty: 10 years’ imprisonment
  • Criminal Damage (Aggravated Offence)
    • Without lawful excuse, destroys or damages any property, intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged
    • Intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered
    • Maximum penalty: Life imprisonment
  • Arson
    • Destroy or damage property by fire
    • Max penalty: Life imprisonment; customary range of between 4 to 6 years of imprisonment if no actual injury is involved
  • Threats to destroy or damage property
    • Without lawful excuse makes to another a threat, intending that the other would fear it would be carried out to destroy/damage any property belong to that other or a third person, or to destroy or damage his own property in a way which he knows is likely to endanger the life of that other or a third person
    • Maximum penalty: 10 years’ imprisonment
  • Possessing anything with intent to destroy property
    • A person who has anything in his custody or under his control
    • Intending without lawful excuse to use it or cause or permit another to use it
    • To destroy or damage any property belonging to some other person or to destroy or damage his own or the user’s property in a way which he knows is likely to endanger the life of some other person
    • It is not enough that the defendant realises that the thing may be so used
    • It is unnecessary that the defendant should intend an immediate use of the thing
    • It is sufficient that he possesses it with the necessary intent even though he contemplates actual use of it at some future time
    • Maximum penalty: 10 years’ imprisonment
Privacy and Confidentiality Law
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Date Protection Principles (DPP)
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The rights under the DPP are not absolute

There are various exemptions provided for, for example:

  • Under Section 57, Personal data held by or on behalf of the Government for the purposes of safeguarding security, defence or international relations in respect of Hong Kong is exempt
  • Under Section 58, personal data held for the purposes of Prevention or detection of crimes, the apprehension, prosecution or detention of offenders; etc. is exempted
  • Section 63C personal data is exempt from protection in case of emergency situations (rescue action or provision of rescue services, life-threatening situations

Before you rely on the exemptions, please check the details carefully

Violation of the Personal Data (Privacy) Ordinance may result in serious consequences

Offences

Under section 64:

  • (1) A person commits an offence if the person discloses any personal data of a data subject which was obtained from a data user without the data user’s consent, with an intent—
    • (a) to obtain gain in money or other property, whether for the benefit of the person or another person; or
    • (b) to cause loss in money or other property to the data subject; or
  • (2) the disclosure causes psychological harm to the data subject.

A person is liable on conviction to a fine of $1,000,000 and to imprisonment for 5 years.

Defences
  • The person reasonably believes that the disclosure is necessary to prevent or detect the offence;
  • any enactment, legal rule or court order provides for or authorizes the disclosure or makes or authorizes the disclosure in accordance with any enactment;
  • the person reasonably believes that the relevant data user has agreed to the disclosure; or
  • the person discloses the personal data for the purpose of a news activity as defined in section 61(3) or for the purpose of an activity directly related to the news activity; and has reasonable grounds (and reasonably believes) that the publishing or broadcasting (wherever and by whatever means) of the data (and whether or not it is published or broadcast) is in the public interest.
“Doxxing”
  • Occurs where someone discloses or uses your personal data with a malicious intent and without your consent; and
  • may involve harassment, denigration, disclosure of real-world identities, framing, impersonation, trickery. Serious cases of doxxing may involve criminal element (eg criminal intimidation); or civil wrong (eg defamation)..
  • Section 64 of the PDPO – this is a criminal offence.
  • DPP 1 and DPP3 - while this is not an offence, but the PCPD may serve an enforcement notice. Failure to comply with the enforcement notice may result in a maximum fine of HKD50,000 and imprisonment of 2 years. A continuing offence may lead to a daily fine of HKD1,000.
Examples of recent malicious collections of personal information include:
  • Personal information of demonstrators, police officers, their wives or girlfriends posted on the Internet along with posts with intimidation, harassment, sexual assault or hate speech
  • Inciting others to post personal information of police children on the Internet
  • Call on others to search for business operations or stores owned by family members of government officials and intend to disrupt operations
General Duty to Cooperate
  • To cooperate with the Police in due execution of their duty
  • If a search warrant is produced, you should read the content of the warrant clearly and cooperate with the Police. If there is any issue regarding legal privilege, you should raise the issue with the Police and request that the relevant materials be sealed pending adjudication of the issue [insert]
  • Obstructing the Police in due execution of their duty is an offence
    • HKSAR v Tam Lap Fai [2005] 2 HKLRD 470
    • Whether or not a conduct is obstructing is a matter of fact and degree
    • Making it more difficult for the Police to carry out their duties may constitute obstruction
    • BUT conduct which may cause mere inconvenience to the officer or require him to expend only trifling additional effort may not be obstructing.
    • If the person is exercising his/her right of silence, clarifying and reasoning with the police officer, giving advice or protection to a close friend, or attending another emergency, he shall not be considered as obstructing the Police in due execution of their duty