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

________________________

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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

________________________

________________________

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

________________________

________________________

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

________________________

________________________

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

________________________

________________________

JUDGMENT

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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 13^th 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 14^th 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 People’s Liberation Army Forces Hong Kong Building.

10.  In his Form 86 dated 12 September 2019, Mr Yeung challenges the alleged decisions 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 two grounds, namely, that such decisions were unlawful and unconstitutional because -

(1)     “[t]hey amount to a breach of the right to be free from torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under BOR 3 and/or ICCPR 7”, and

(2)     “[t]hey are 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”.

(iv)    HCAL 2703/2019 [6]

11.  There are three applicants in this application.  They are all Hong Kong permanent residents aged 51, 24 and 42 respectively at the time of incidents described below.  Each of them alleges that he was a victim of police brutality in August, July and June 2019 respectively.  Very briefly:

(1)     The 1^st Applicant (“Mr K S Chan”) alleges that on 4 August 2019, at around 10:30 am, he took a stroll with his son near their home in Tseung Kwan O after having dinner at home.  While they were on their way back to their home, he was hit by a helmeted AR officer on his head with a baton at around 11:12 pm, causing him to suffer head injuries with serious bleeding.  Throughout the incident, there was no allegation that he had committed any offence.  Neither was he arrested for any offence.  He made a complaint to CAPO by registered post on 7 September 2019.  He was, however, unable to identify the officer who hit him because the AR officers at the scene were all helmeted and did not display their identification numbers (or any other distinctive insignia) on their uniforms.  He could not therefore make a specific complaint to CAPO, or institute a civil claim or private prosecution against the officer in question.  On 16 October 2019, Mr K S Chan commenced an action in the High Court (HCMP 1797/2019) for pre-action discovery against the Commissioner seeking disclosure of information and documents relevant to the above incident.  In response, the Commissioner filed evidence stating that “despite proper investigations and the best endeavours, the [Commissioner] has not been able to identify any evidence to show any police officer having hit [Mr K S Chan] on the head with a baton, or used any force at all on him …”

(2)     The 2^nd Applicant (“Mr Lo”) alleges that on 14 July 2019, in the afternoon, he participated in a public procession in Sha Tin.  Afterwards, at around 9:00 pm, while he was on his way to another public meeting at Sha Tin Town Hall, he saw a group of helmeted AR officers rushing towards the position where he was standing among a group of protestors.  According to Mr Lo, the protestors were attacked by the AR officers in the middle of Tai Po Road.  Despite the fact that he did not engage in any violent or disorderly conduct and had not committed any criminal offence, he was pepper sprayed by at least 3 AR officers in his face and hands at close range, which caused him intense physical pain lasting for the whole night.  Mr Lo considers that the officers involved had used unlawful force against him. He was, however, unable to identify the officers, because they were all helmeted and did not display their identification numbers (of any other distinctive insignia) on their uniforms.  He was therefore unable to make a complaint to CAPO or pursue a civil claim against those officers.

(3)     The 3^rd Applicant (“Mr Ng”) alleges that on 12 June 2019, at around 3:00 pm, he was standing by the side of a road near the junction of Harcourt Road and Tim Wa Avenue and was not doing anything in particular.  He was, however, battered by a group of STC officers who came after him from behind his back, causing him intense pain and suffering.  He sustained a head injury with a 3 cm scalp hematoma.  He was arrested for the offence of unlawful assembly, and later admitted to Queen Mary Hospital through the A&E Department at around 7:30 pm.  He was hospitalized for one night and discharged on 13 June 2019.  Up to now, no criminal charge has been laid against him.  Mr Lo considers that the use of force by the STC officers on him was unlawful.  He was, however, unable to identify the STC officers involved, because they were all dressed in black uniforms and masked, and did not display their identification numbers (or any other distinctive insignia) on their uniforms.  He could not therefore make a complaint to CAPO, or institute a civil claim or private prosecution against the officers who battered him in that incident.

12.  In their Form 86 dated 16 September 2019, the three Applicants challenge:

“[t]he systemic and continuous failure of [AR officers] and [STC officers] to display identification numbers (or any other distinctive insignia) on their uniforms when discharging their constabulary duties”,

on the ground that such failure -

“is inconsistent with [ICCPR 7] and/or [BOR 3] (read in conjunction with the Government’s general duties under ICCPR 2(1)) and is therefore unconstitutional”.

(v)     HCAL 2915/2019

13.  In this application, HKJA challenges, inter alia, the following “decisions”:

“[t]he failure of the Commissioner to require or ensure that all uniformed police officers, and plainclothes police officers exercising any public power, wear clearly visible individual identification in the course of public order events on and after 12 June 2019”

and

“[t]he failure of the Government of the HKSAR to make available an independent mechanism for the purposes of investigation of complaints of ill-treatment by police officers”.

14.  HKJA was established in 1968.  It is registered as a trade union under s 5 of the Trade Unions Ordinance, Cap 332, by the Registrar of Trade Unions.  As a trade union run by working journalists, HKJA strives to improve the working conditions for both local and international journalists in Hong Kong.  One of the aims of HKJA is to protect and promote press freedom in Hong Kong, as well as the integrity of news coverage. Currently, it has a total of 805 members working in different local and international media.

15.  The basis of HKJA’s application is, in summary, as follows:

(1)     Since 12 June 2019, Hong Kong has experienced a large number of public order events, including some involving serious violence. These are events of momentous public importance.  In order to ensure that these events are impartially recorded and documented, and to keep the public informed, members of the local and international media have attended to report on them.

(2)     HKJA, while recognizing the extremely challenging circumstances under which the Force has been called upon to perform its public responsibilities and duties, considers that the conduct of the Force in relation to the public order events has fallen far short of its duty to facilitate lawful journalistic activities.  In particular, journalists have seen force used directly against them by police officers, the details of which it is not necessary to set out in this judgment.

(3)     A raft of complaints made to the Commissioner by HKJA, and by individual journalists and media organisations have been either ignored or baldly denied by the Commissioner and/or his senior officers.

(4)     By this application, HKJA seeks to establish the following -

(a)     The Force is subject to a constitutional and public law duty to facilitate journalistic activities;

(b)     This duty has been breached in the course of the recent public order events between (and including) 12 June 2019 and the date of the application (3 October 2019);

(c)     The Commissioner has acted unlawfully by failing or refusing to investigate, or address in any way, such breaches, either effectively or at all;

(d)     The Commissioner has acted unlawfully by permitting or suffering his officers to perform policing duties without any visible unique identification, and/or without producing a warrant card when reasonably demanded by members of the press; and

(e)     The Government of the HKSAR has a duty to establish a mechanism capable of effectively and independently investigating complaints against the police of ill-treatment, including complaints brought by journalists and members of the public, and the existing complaints mechanism involving a combination of the Independent Police Complaints Council (“IPCC”) and CAPO are inadequate to fulfil this obligation.

This judgment, in so far as HCAL 2915/2019 is concerned, focuses on the last two complaints identified in §§(d) and (e) above.  In support of these complaints, HKJA relies on, inter alia, BL 28 and BOR 3.  The other complaints identified in §§(a) to (c) above were heard separately and will be dealt with in a separate judgment to be handed down.

16.  Before I consider the substantive questions raised in these applications, a preliminary observation should be made.  As mentioned in the course of the directions hearing on 30 October 2019 (in relation to HCAL 2915/2019) and in the directions given by the court on 14 November 2019, an application for judicial review is wholly inappropriate for resolving substantial disputes of primary facts, and should not be used for such purpose (Tsang Kin Chiu v Commissioner of Police [2015] 4 HKLRD 71, at §§16-17 per Au J (as he then was); Sean Leonard v Commissioner of Police, CACV 239/2007 (19 February 2008), at §23 per Cheung JA; R (Sher) v Chief Constable of Greater Manchester Police [2011] 2 All ER 364, at §§72 & 80 per Coulson J).  In this judgment, the court shall therefore only deal with matters of principle, but will not determine whether the applicants or journalists were, as a matter of fact, subjected to ill-treatment by officers in any specific case.  Such allegations ought to be resolved, if desired, in a writ action.

II     THE COMMISSIONER’S FACTUAL CASE ON DISPLAY OF UI NUMBERS OR OTHER IDENTIFYING INSIGNIA BY POLICE OFFICERS

17.  Save where the context indicates otherwise, the factual matters stated in §§19 to 64 of this judgment are based largely on the evidence of Mr Kenneth Lee, Chief Inspector of Police (Special Duty) (Operations Wing).

(i)     Insignia Policy for uniformed officers (other than STC officers) and plainclothes officers prior to 27 November 2019

18.  The Force has three sets of “standard” uniform, namely, “Force Working Uniform”, “Ceremonial Uniform” and “Full Uniform”.  The latter two types of standard uniform are not relevant for the purpose of the present discussion.  In addition, police officers in specialized units or engaged in specific duties may wear other uniform as designed for their specific operational requirements, and such uniform is considered to be “non-standard” uniform.

19.  According to PGO §15, except those with prior approval to be in plainclothes and those authorized to wear non-standard uniform, police officers in uniform branch (“UB”) should wear Force Working Uniform while on duty.  The relevant provisions of the PGO state as follows:

“15-01 Uniform

An officer shall:-

(a) not vary any item of uniform or dress issued by the Force unless authorized by the Commissioner (ACP, SUP);

(d) ensure he/she is correctly dressed when in uniform at all times and that uniforms are kept clean and neatly pressed;

(e) only wear Force insignia appropriate for his rank …

15-02 Dress and Appearance

2. Uniform is only to be worn by UB officers if they are on duty…

15-04 Wearing of Plain-clothes on Duty

     UB officers shall wear uniform when on duty unless specifically exempted (FPM 15-04) or ordered otherwise by a Formation Commander…”

20.  The epaulettes worn by UB officers on the shoulders of their uniform are considered to be part of the police uniform, and thus are generally required to be worn by officers when on duty:

(1)     for police officers up to and including the rank of Sergeant (ie Police Constable, Senior Police Constable and Sergeant), the epaulettes should show their UI Numbers and ranks (1 chevron for Senior Police Constable, and 3 chevrons for Sergeant); and

(2)     for police officers holding the rank of Station Sergeant and above, the epaulettes need only show their ranks without the UI Numbers.

21.  AR officers are assigned “internal security” uniform, which is considered to be non-standard uniform.  Nevertheless, the cloth insignia, which are identical to the epaulettes worn by other UB officers except that they are made of different materials and have different colours, worn by AR officers on the shoulders of their uniform display the same information, ie, the UI Numbers and ranks (for officers up to and including the rank of Sergeant), or only their ranks without the UI Numbers (for officers holding the rank of Station Sergeant and above).

22.  In other words, the individual identity of officers of or above the rank of Station Sergeant would not be shown on the cloth insignia / epaulettes worn by them.

23.  Two further points should be noted at this stage:

(1)     officers on plain-clothes duty are, by definition, not subject to the above requirements; and

(2)     the requirement to wear the cloth insignia / epaulettes did not apply to STC officers.  I shall deal with the question of identification of STC officers below.

(ii)     “Call-sign” after 27 November 2019

24.  On 27 November 2019, the Force rolled out a new instruction (“the New Instruction”) which took immediate effect until the operation (known as “Operation TIDERIDER”) relating to the public order events arising out of the Bill are regarded as having been concluded (on a date yet to be announced):

(1)     Under the New Instruction, each UB officer and plainclothes officer deployed in Operation TIDERIDER, including station defence, high profile patrol, policing public order events and sweeping in public disorder and riotous situations, would be issued an operational call-sign (“Call-Sign”) printed on a blue standard security card (commonly called the “Blue Card”).

(2)     The Call-Sign is based on a combination of information such as the officer’s district, platoon/team and position within the platoon/team - eg “C T3 Coy 2ic” stands for “Central District Tier 3 Company, second-in-charge”.

(3)     The commanding Superintendent of units deployed in Operation TIDERIDER, and an officer ranked Superintendent or above in a Regional Reserve Contingent or other units deployed in such operation, are the approving authority on when officers of the ranks of Constable and Sergeant may wear and display the Blue Cards, in lieu of the requirement to wear the cloth insignia / epaulettes.  For officers ranked Station Sergeant or above, they are required to continue to wear the cloth insignia / epaulettes in addition to the Blue Card.

(4)     The Blue Card is supposed to be placed in a plastic sleeve on the approved police vest / jacket, and conspicuously displayed.

(5)     When an officer who has been issued a Blue Card is transferred out, he is required to hand back the card for it to be reallocated to another officer taking up his position in the platoon / team.

(6)     The issuance and return of a Blue Card is recorded in a register which contains information including (i) the date and time of issuance, (ii) the date and time of return, (iii) the receiving officer’s name, rank and UI Number, and the formation to which that officer belongs, and (iv) the issuing officer’s name, rank and UI Number, and the formation to which that officer belongs.  The register is maintained by an officer ranked Sergeant or above nominated by the Company Commander (Superintendent), and are inspected by a supervisory officer (of the Inspectorate rank or above) on a weekly basis and by the Company Commander not less than once a month on a random basis, to ensure that all entries are properly filled out and signed.

(7)     The New Instruction also applies to plainclothes officers deployed in Operation TIDERIDER; in other words, plainclothes officers deployed in such operation are required to display the Blue Cards.

(8)     The New Instruction does not apply to STC officers, who are subject to a separate set of identification measures.

25.  The purpose of the New Instruction, according to Mr Kenneth Lee, is threefold:

(1)     It improves operational efficiency, in that an officer’s position, role and/or function can be readily identified by other officers on the ground.

(2)     It renders officers deployed in Operation TIDERIDER more easily identifiable by members of the public, in that officers of the rank of Station Sergeant and above and plainclothes officers, who under the GPO are generally not required to display their UN Numbers, would wear visible, unique and traceable call-sign cards.

(3)     It addresses the serious and legitimate concerns amongst officers with respect to doxxing.

26.  Notwithstanding the aforesaid matters, there is evidence before the court that there were cases where:

(1)     multiple officers worn the same Call-Sign in a single event[7].

(2)     officers did not properly display the Blue Cards, eg using other objects to block the view of the Blue Cards[8].

(iii)    Disclosure of identity and warrant cards under PGO

27.  Under PGO §20-03:

“20-03 Disclosure of Identity to Members of Public Upon Request

Without prejudicing operational efficiency, officers executing statutory powers should disclose adequate information to identify themselves upon request. Officers should disclose the following minimum information after a request to identify themselves:-

PC, SGT, Traffic Warden and Senior Traffic Warden	SSGT and above
Rank and UI Number	Rank and surname

”

28.  PGO §20-14 further states as follows:

“20-14 Warrant Cards

A warrant card is evidence of an officer’s appointment as a police officer under the Police Force Ordinance, Cap 232…

4 Uniformed police officers should produce their warrant cards upon request by members of the public unless:-

(a) circumstances do not allow; or

(b) to do so would prejudice the police action and/or safety of the officers concerned; or

(c) the request is unreasonable.

5     If a police officer in uniform is unable to produce his warrant card at the time of the request as required by paragraph 4(a) and (b) above, the officer should produce the warrant card at the earliest opportune moment.  Only where police officers do not produce their warrant cards, either because the request for production was unreasonable or it could not be subsequently complied with, must an explanatory notebook entry be made.”

29.  With effect from 27 November 2019 until a date to be announced when Operation TIDERIDER is regarded as having concluded, the Force has waived the requirements on the part of officers deployed in the said operation to disclose their ranks and UI Numbers, or ranks and surnames (depending on their ranks) under PGO §20-03.  Such officers may, instead, disclose their Call-Signs to identify themselves upon request.

30.  However, police officers should still comply with the requirements under PGO §20-14(4) and (5) relating to the production of warrant cards upon request by members of the public.  The Force has also given policy approval to extend such requirements to plainclothes officers deployed in Operation TIDERIDER commencing on 27 November 2019 until the end date of the operation (to be announced).  Where more than one officer is operating in a group (either in uniform, plainclothes or a combination of the two), only the most senior officer present is required to produce his/her warrant card upon request by a member of the public.

(iv)    STC Insignia Policy

31.  Following the Occupy Central Movement in 2014, the Force recognized the need to set up a special tactical contingent with the necessary operational capabilities (such as barricade removal, crowd dispersal and special weapons support, etc) and established the STC in September 2014. The STC is a small operational unit with members drawn from different operational units to perform duties on an ad hoc basis, and is under the command of the Commandant of the Police Tactical Unit (警察機動部隊) (“PTU”).  STC officers, when deployed, carry out extra duties secondary to their primary and regular duties, and they return to their parent formations after performance of the ad hoc tasks required of them.

32.  The structure of the STC was formalized in May 2017.  The features of the STC include:

(1)     On training and formation, members of the STC are trained to work in small teams, normally with five officers including one team leader at the Inspectorate or Sergeant level.

(2)     Upon deployment, members of the STC usually remain in the same designated team, and are deployed in a designated team format to a specific location for carrying out specific tasks.  Each member is assigned with specific accessories, equipment and/or weapons to fulfill his/her designated role in the team.  The team leader would maintain a duty list to assist him/her in looking up or identifying the team members.

(3)     The primary purpose of the STC is to provide special weapons or tactical capabilities to other police units to assist in their attempts to regain control of a situation or location, neutralization of threats of violence or vandalism, and/or make arrests on the ground in circumstances where exceptional levels of public disorder are anticipated.

33.  When the STC was first established in September 2014, STC officers wore the PTU Uniform, which was considered to be non-standard uniform, as protective clothing.  As such, there was no requirement for them to wear the cloth insignia / epaulettes displaying their UI Numbers and/or ranks although, as a matter of fact, some STC officers might have done so because the PTU Uniform came with shoulder strips on which the cloth insignia (embroidered with the officer’s UI Number and/or rank) could be placed.  For the purpose of identification of the designated teams, a “team call-sign” (eg “3-1”[9]) would be allocated to each STC small team, and members of a team would be issued with Velcro embroidery badges printed with the team call-sign to be attached to the back of their helmets.  The team call-sign only identified the designated team, but not the individual team members.  In other words, the team call-sign was not unique to each STC officer[10].

34.  During the handling of riotous incidents in early 2016, the Force realized that, in order to deal with the heightened threats to public order and safety as well as violence targeted against police officers, the PTU Uniform worn by STC officers could not provide a sufficient level of protection to meet their operational and occupational safety needs. After some market research, the Force found a new set of protective clothing which offered a higher level of protection in terms of improved durability, flame resistance and compatibility with elbow pads and knee pads, and considered that it would meet the operational needs of STC officers.  The new protective clothing was acquired as an off-the-shelf product from overseas, and was not specifically tailor-made for the Force.

35.  The original design of the new protective clothing did not come with any shoulder strips for placing the cloth insignia, or other place(s) designed for the display of the UI Number.  It was for this reason that the Secretary for Security said in a Legislative Council meeting on 19 June 2019 that “工作服的設計是沒有位置去展示警員的編號 (the design of the uniform does not provide for a space for police officers to display their identification numbers)”.

36.  The use of the new protective clothing by STC officers was formally approved in January 2017 and was used for the first time on 9 June 2019 when the STC was deployed to assist in the handling of a series of hostile and confrontational protests and demonstrations outside the Legislative Council Complex and Central Government Offices at Tamar.  Since the new protective clothing was not considered to be a police uniform (whether standard or non-standard), there was no requirement, whether under the PGO or otherwise, for STC officers to wear the cloth insignia / epaulettes on the shoulders of the protective clothing or to display their UI Numbers or ranks when on duty.  Nevertheless, on that occasion, some STC officers did, out of their own initiative, “put on” the cloth insignia issued for their primary duties by “clipping it” to the strap of the radio pouch or their utility/tactical vest, etc.

37.  Since 28 June 2019, in addition to the Velcro embroidery badge bearing the team call-sign (as described in §33 above), each STC officer is given an additional sticker with a letter (eg, “a” to “e” if the team consists of 5 members) which is unique to that officer in the team for display on the helmet so that an individual STC officer becomes more easily identifiable.  Together with the team call-sign, they form what is referred to as the “alphanumeric code” (“Alpha Id”), which is attached to the back of a STC officer’s helmet.  This modified arrangement relating to the display of a STC officer’s identity does not apply to those officers occupying some specific posts whose helmets would only show their posts (eg, “SP-TRG” which stands for “Superintendent - Training”, or “C-ORD” which stands for “Commandant Orderly”), because such posts are very limited in number, if not unique, and the chance of helmets bearing the same mark at any one time and location is slim.

38.  An Alpha ID is not unique to the officer to whom it has been assigned.  It only “remains unchanged for each STC police officer’s deployment subject to transfer-ins and outs of police officers from the STC”[11].  Further, although the Alpha ID is supposed to be unique to each STC officer deployed at a particular time and location (save those occupying specific posts as mentioned above), there is evidence that on occasions, STC officers belonging to the same team and deployed at the same time and location did not attach the assigned letters to their helmets and only the team call sign was displayed[12].

39.  In respect of record keeping, a Headquarters Field Operational Support Team is responsible for maintaining the daily record of team call-signs and alphabets assigned to STC officers as well as their names, UI Numbers and ranks, which would permit individual officers to be traced where necessary or required.

40.  According to Mr Kenneth Lee, the aforesaid modified arrangement was introduced for more effective and efficient deployment of the STC, and provides a more effective means of identification of individual STC officers for the purpose of handling police complaints to alleviate concerns expressed by some members of the public about the absence of individual identification of STC officers deployed in handling the recent public order events.

III     IDENTIFICATION OF POLICE OFFICERS BY CAPO

41.  According to Mr Kenneth Lee, CAPO has in place a “two-fold system of identification” of police officers against whom complaints of misconduct have been made by members of the public.  The Call-Signs, applicable to all uniformed officers (excepts STC officers) and plainclothes officers, and Alpha IDs, applicable to STC officers, constitute the first fold of the system of identification.

42.  If a complainant can provide CAPO with the Call-Sign or Alpha ID of the police officer in question, and/or the time and location of the alleged misconduct, such information would likely be sufficient for CAPO to identify the relevant officer for the purpose of commencement of investigation.

43.  Even if the complainant is unable to provide sufficient information to enable a police officer to be identified immediately, there are other means which CAPO may employ to identify the officer in question (the second fold of the system of identification), including:

(1)     obtaining a more detailed account of the incident from the complainant, such as the date, time, location, circumstances of the incident, uniform worn by the officer, and further description of the officer (such as gender, build, height, distinctive features, equipment or weapon carried by him/her, etc);

(2)     making inquiries, based on the available information, with the police units or relevant officers to elicit further details of the incident;

(3)     conducting site / scene visit to gather additional evidence from CCTV or dashcam footage or by locating eyewitnesses and, where necessary, collecting forensic evidence;

(4)     gathering additional information through publicly available sources of information (such as news articles and posts on social media platforms); and

(5)     checking the available duty records of the relevant officers and their supervisors, including duty lists, occurrence books, notebook entries, vehicle log books, equipment issue records, use of force records, entry/exit records, electronic logs and records, phone recordings, and the Blue Card registers.

44.  For disorderly or chaotic situations where a large number of police officers wearing protection equipment are deployed which may render individual identification more difficult, CAPO may conduct additional inquiries, including examination and/or consideration of:

(1)     the relevant nominal roll of PTU / Emergency Unit / tier companies and platoons;

(2)     the role or position of the concerned officer within his/her platoon or unit;

(3)     the equipment assigned to, or weapons carried by, the concerned officer;

(4)     the body-worn video camera footage or video footage taken by the video team (if any); and

(5)     written or verbal inquires with the supervisor believed to be in charge of the team or nominal roll concerned.

45.  Notwithstanding the label (“two-fold system of identification”) given by Mr Kenneth Lee to describe the methods and inquiries used or made by CAPO for the purpose of identifying an officer against whom a complaint has been made, it seems to me that they are no more than the sort of methods and inquiries that one would reasonably expect would be used or made by any conscientious body tasked with the duty of investigating complaints against police officers.

IV     TWO-TIER MECHANISM FOR HANDING COMPLAINTS AGAINST POLICE OFFICERS

46.  There is currently in force in Hong Kong a two-tier mechanism for handling complaints against the Force, with (i) CAPO and (ii) IPCC carrying out the first and second tiers of the complaint mechanism respectively.

(i)     CAPO

47.  All complaints against police officers relevant to the present applications are first referred to CAPO for investigation[13].

48.  Organization: CAPO is one of two divisions of the Complaint and Internal Investigations Branch (“C&IB”) within the Force.  C&IB is commanded by a Chief Superintendent who is directly responsible to the Assistant Commissioner of Police, Service Quality, who in turn is accountable to the Deputy Commissioner of Police.  CAPO is itself commanded by a Senior Superintendent with four Superintendents operating a Headquarters Office and three Regional Offices (Hong Kong Island, Kowloon and New Territories).

49.  Personnel: there are currently about 129 CAPO officers ranking from Chief Inspectors to Police Constables.  They are generally experienced officers: the average length of service of all present CAPO officers in the Force is 17 years.  The normal tenure of officers serving in CAPO is 2 to 3 years.  Afterwards, they will be transferred back to other units of the Force, and other officers will be recruited to replace the outgoing officers.  CAPO officers do not take part in frontline line duties or operations, such as beat patrol or crime investigation.  CAPO officers would also not be involved in any investigation of complaints which may give rise to a conflict of interests.

50.  Training and experience: officers posted to CAPO would generally be those with a good performance record and satisfactory report-writing skills.  The majority of CAPO officers have undergone training courses from which they acquire the necessary investigation skills and capabilities.  They are experienced in conducting general police investigation, as well as investigation of complaints against police officers.

51.  Funding: being part of the Force whose annual funding requirement forms part of the Hong Kong Government’s Budget approved by the Legislative Council on an annual basis, CAPO has sufficient budgetary and technical resources to carry out all necessary investigation.

52.  Investigation of complaints: CAPO follows its internal guidelines and the requirements under the Independent Police Complaints Council Ordinance, Cap 604 (“IPCCO”) in handling and investigating complaints against police officers.  CAPO has power to obtain evidence from officers.  Any officer (whether a complainee or not) is obliged to give a statement upon CAPO’s request.  Witnesses other than officers may also be invited to give a statement or evidence to assist in CAPO’s investigation.  For cases where the complainant has suffered injuries and received medical treatment, CAPO would request the complainant to give his/her consent for the release of his/her full and relevant medical records.  Where necessary, CAPO will also seek the complainant’s consent to arrange for medical examination by a forensic pathologist or a medical officer from the Hospital Authority.

53.  Timeframe for completing investigation: CAPO endeavours to conduct swift, fair and impartial investigations, and ensure in particular that all possible avenues of inquiries and investigation are exhausted.  The Commissioner is obliged to submit an investigation report to IPCC as soon as practicable after completing an investigation of a “reportable complaint” in accordance with s 17 of the IPCCO (see §60 below).  Generally, CAPO aims to complete an investigation of a complaint within 4 months (except for cases subject to, or affected by, court proceedings).  Save where specifically agreed between the Commissioner and IPCC, if an investigation of a reportable complaint is not completed within 6 months, the Commissioner is required to submit an interim investigation report on the complaint to IPCC every 6 months from the date of receipt of a complaint in accordance with s 18 of the IPCCO.

54.  A completion letter will be sent to the complainant within 3 working days prior to the case being sent to IPCC, and a final letter informing the complainant of the results of the investigation will be sent within 10 working days of endorsement being received by CAPO from IPCC.  In the period between December 2018 and December 2019, the rates of CAPO successfully completing the investigation of complaints within the target time of 4 months ranged from 77.1% to 93.1% (on average 82.4%).

55.  Due to the complexity and large number of complaints arising from the public order events since June 2019, two special investigation teams have been formed to deal with them specifically.  The two teams comprise 26 police officers (ranking from Superintendents to Police Constables) who have CAPO experience and who have not taken part in handling the recent public order events.

56.  As at 20 January 2020, CAPO received a total of 1,620 complaints against the Force relating to or arising out of the major public order events that have taken place since 9 June 2019, including complaints brought by persons directly affected by the relevant police conduct (reportable complaints) and anonymous complaints.  These complaints include “misconduct”, “impoliteness”, “assault”, etc.

(ii)     IPCC

57.  The second tier of the mechanism for handling complaints against the Force is carried out by IPCC.

58.  IPCC became a statutory body on 1 June 2009 with the enactment of the IPCCO.  It is an independent body which is neither a servant nor an agent of the Hong Kong Government.  It comprises a Chairman, 3 Vice-Chairmen and no less than 8 other members, all appointed by the Chief Executive.  They are drawn widely from the society, including the legal, medical, healthcare, education, social welfare, communications, and business sectors, and Legislative Council members.  A person who holds an office of emolument, whether permanent or temporary, in a Government bureau or department, or a person who was a member of the Force, is not eligible for appointment as an IPCC member.  As at 1 January 2020, there were 26 IPCC members.

59.  IPCC’s roles and duties, insofar as handling of complaints against the Force is concerned, are, inter alia, to:

(1)     observe, monitor and review the handling and investigation of reportable complaints by the Commissioner;

(2)     monitor actions taken or to be taken in respect of any officer by the Commissioner in connection with reportable complaints; and

(3)     advise the Commissioner and/or the Chief Executive of its opinion and/or recommendation in connection with reportable complaints.

60.  Under s 11 of the IPCCO, a complaint received by the Commissioner must be categorized as a “reportable complaint” if the complaint -

“(a) relates to -

(i) the conduct of a member of the police force while on duty or in the execution or purported execution of his duties, whether or not he identified himself as such a member;

(ii) the conduct of a member of the police force who identified himself as such a member while off duty; or

(iii) any practice or procedure adopted by the police force;

(b) is not vexatious or frivolous and is made in good faith;

(c) is made by or on behalf of a complainant directly affected by the police conduct;

(d) is made by a person (whether on his own behalf or on behalf of a complainant) who has properly identified himself and provided the Commissioner with a means of contacting him; and

(e)  (if made by a person on behalf of a complainant) is made in accordance with section 15.”

61.  Further, the IPCCO empowers IPCC to identify any fault or deficiency in police practice or procedures which have led, or may lead, to a reportable complaint.

62.  IPCC also administers an Observers Scheme, under which IPCC members and observers (appointed by the Secretary of Security) may attend interviews and observe the collection of evidence in connection with CAPO’s investigation, either on a surprise or pre-arranged basis.  Any person who is interviewed by CAPO in connection with a reportable complaint may request the presence of an observer.

63.  As earlier mentioned, CAPO’s investigation reports are required to be submitted to IPCC, upon which IPCC may take a variety of follow-up actions:

(1)     The IPCC Secretariat may pose questions and seek clarifications or further information.  If there is no query, the report will be submitted to IPCC members for scrutiny.

(2)     IPCC may request interviews with persons related to any case to clarify matters before a panel of no less than 2 IPCC members.

(3)     If IPCC and CAPO cannot agree on the findings of an investigation, they may discuss the case at a working level meeting or a joint meeting.  IPCC may request re-investigation of the case.  If IPCC’s final decision is to refuse to endorse the results of an investigation of a complaint by CAPO, it may disclose the disagreement to the Chief Executive or the public, and express its views to the Chief Executive or the Commissioner on the actions to be taken by the Commissioner regarding the officer against whom the complaint has been lodged.

(4)     If a complainant is dissatisfied with the results of CAPO’s investigation, he/she may request CAPO to conduct a review, the results of which would be submitted to IPCC, who would in turn inform the complainant of the same.

64.  In any case where the relevant allegation is found to be “substantiated”, “substantiated other than reported” or “not fully substantiated”, prosecution and/or disciplinary or other administrative actions may be taken against the officer concerned depending on the circumstances and evidence of the case.

V     VIOLATION OF THE PROCEDURAL DUTY UNDER BOR 3

(i)     BOR 3 prohibits use of unnecessary or excessive force by police officers

65.  BOR 3 states as follows:

“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment…”

66.  The rights protected by BOR 3 are absolute and non-derogable (Ubamaka Edward Wilson v Secretary for Security (2012) 15 HKCFAR 743, at §114).  This means that even in times of public emergencies, however serious, the rights under BOR 3 must still be respected by the Government and protected by the courts (s 5 of the Hong Kong Bill of Rights Ordinance).

67.  For conduct to be covered by BOR 3, it must attain “a minimum level of severity”, generally involving actual bodily injury or intense physical or mental suffering.  Conduct may also be regarded as degrading for the purpose of BOR 3 if it humiliates or debases an individual showing a lack of respect for or diminishing his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance (Ubamaka, at §173, quoting R (Limbuela) v Secretary of State for the Home Department [2006] 1 AC 396, at §§53-55).

68.  Strasbourg jurisprudence on Article 3 of the European Convention on Human Rights (“ECHR”), which is materially the same as BOR 3, establishes that in respect of a person who is confronted with law-enforcement officers, any recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is, in principle, an infringement of the rights set forth in that article (Ribitsch v Austria (1996) EHRR 573, at §38; El-Masri v Macedonia (2013) 57 EHRR 25, at §207; Bouyid v Belgium (2016) 62 EHRR 32, at §88).  Further, in Bouyid, the European Court of Human Rights held, at §101, that a violation of ECHR 3 would occur in such a situation even if the minimum severity threshold for degrading treatment had not been attained:

“The Court emphasises that the words ‘in principle’ cannot be taken to mean that there might be situations in which such a finding of a violation is not called for, because the above-mentioned severity threshold (see paragraphs 86-87 above) has not been attained. Any interference with human dignity strikes at the very essence of the Convention (see paragraph 89 above). For that reason any conduct by law-enforcement officers vis-à-vis an individual which diminishes human dignity constitutes a violation of Article 3 of the Convention. That applies in particular to their use of physical force against an individual where it is not made strictly necessary by his conduct, whatever the impact on the person in question.”

(ii)     Positive duty to investigate suspected cases of breach of BOR 3

69.  A procedural obligation on the part of a government arises under Article 7 of the International Covenant on Civil and Political Rights (“ICCPR 7”)[14] to investigate promptly and impartially any suspected case of breach of ICCPR 7 by State agents or bodies, including police officers, so as to ensure that the rights thereunder are fully and effectively protected.  The basis of this procedural duty has been said to be ICCPR 2(3), which states as follows -

“Article 2

3 Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

(c) To ensure that the competent authorities shall enforce such remedies when granted.”

70.  The United Nations Human Rights Committee (“the Human Rights Committee”) has stated in its General Comment 20 in relation to ICCPR 7, at §14, that:

“Article 7 should be read in conjunction with article 2, paragraph 3, of the Covenant. In their reports, States parties should indicate how their legal system effectively guarantees the immediate termination of all the acts prohibited by article 7 as well as appropriate redress. The right to lodge complaints against maltreatment prohibited by article 7 must be recognized in the domestic law. Complaints must be investigated promptly and impartially by competent authorities so as to make the remedy effective.”

71.  Although the Hong Kong Bill of Rights Ordinance, Cap 383, does not have the exact equivalence of ICCPR 2(3), the assurance of the rights protected by the Hong Kong Bill of Rights, including those under BOR 3, is guaranteed by BOR 1, which states that:

“(1) The rights recognized in this Bill of Rights shall be enjoyed without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

(2) Men and women shall have an equal right to the enjoyment of all civil and political rights set forth in this Bill of Rights.”

72.  Further, in D v Commissioner of Police of the Metropolis [2016] QB 161, Laws LJ (with whom Lord Dyson MR and Kitchin LJ agreed) held that the duty to investigate ill-treatment prohibited by ECHR 3 was not derived from Article 1 of the European Convention on Human Rights (“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention”), but arose by its own force (§§10-20).

73.  In ZN v Secretary for Justice [2018] 3 HKLRD 778, the Court of Appeal, drawing upon Strasbourg jurisprudence, held that the Government was under a positive obligation to carry out investigation once it is aware, or ought to be aware, of circumstances giving rise to a credible suspicion of a breach, or a real and immediate risk of a breach, of BOR 4 (prohibition of slavery or servitude):

“[190] In short, the investigative duty under article 4 can be taken from what the European court has said in relation to a member state’s duty to investigate under article 4 of the European Convention in Rantsev[15], bearing in mind, however, that in that case, the European court interpreted the obligation under article 4 to include combating human trafficking per se. With that caveat in mind, what the European court has said is still relevant to Hong Kong in relation to our article 4, mutatis mutandis

‘…

288 Like arts 2 and 3, art.4 also entails a procedural obligation to investigate situations of potential trafficking. The requirement to investigate does not depend on a complaint from the victim or next-of-kin: once the matter has come to the attention of the authorities they must act of their own motion. For an investigation to be effective, it must be independent from those implicated in the events. It must also be capable of leading to the identification and punishment of individuals responsible, an obligation not of result but of means. A requirement of promptness and reasonable expedition is implicit in all cases…’

[191] What is worth emphasising is that it is a positive duty on the part of the government to carry out investigation once it is aware, or ought to be aware, of circumstances giving rise to a credible suspicion that an identified individual has been, or is at real and immediate risk of being, required to perform forced or compulsory labour within the meaning of article 4.  It does not depend on the victim realising or making a complaint that he or she is or has been a victim of a violation of article 4.”

74.  When ZN reached the Court of Final Appeal [2020] 2 HKC 75, the Secretary for Justice accepted that there was an investigative duty imposed on the Government by BOR 4 (§83).

75.  I see no reason why the same approach should be not applicable to BOR 3 such that a positive investigative duty is imposed on the Government once it is aware, or ought to be aware, of circumstances giving rise to a credible suspicion that an identified individual has been, or is at real and immediate risk, of having been subjected to ill treatment by a police officer falling within the scope of that article.

76.  For the purpose of establishing a credible suspicion of a breach of BOR 3, the existence of an “arguable claim” would suffice.  In Hentschel and Stark v Germany (Application No 47274/15), the applicants alleged that they had been beaten and pepper sprayed by police officers in an incident occurring after the end of a football match between two rival clubs in violation of ECHR 3, but were unable to identify the officers involved owing to their identical uniform and the lack of any identifying signs or name tags of the officers (although an identification number of the squad was displayed on the back of the helmets worn by the officers).  The applicants complained, inter alia, that they had no judicial remedy at their disposal to challenge the discontinuation and the ineffectiveness of the investigation carried out by the public prosecutor’s office.  One of the arguments raised by the German Government was that there had not been a credible allegation of police violence.  In respect of that matter, the European Court of Human Rights held that it was unable to establish beyond reasonable doubt the police ill-treatment alleged by the applicants.  Nevertheless, the Court went on to hold, at §82, the following:

“In that regard the Court reiterates that the term ‘arguable claim’ cannot be equated to finding a violation of Article 3 under its substantive head. An arguable claim only requires that there is a reasonable suspicion that applicants were ill-treated by the police or another national authority … Given the statements made by the applicants to the police – which, it must be stressed, were made with a certain delay and were not free of contradictions – the press reports that corroborated their accounts and the medical certificates confirming the applicants’ injuries, the Court finds that there was an arguable claim of ill-treatment by the police which had to be effectively investigated by an independent national authority.”

77.  In the present case, the court has considered the specific complaints raised by Mr K S Chan, Mr Lo and Mr Ng in HCAL 2703/2019, by Mr Yeung in HCAL 2671/2019, and by various journalists contained in what have been referred to as “Journalists’ Statements” in HCAL 2915/2019.  As mentioned above, it would not be appropriate for the court to make any specific findings of fact in respect of the allegations which have been made against the Force, in particular whether police officers used unreasonable or excessive force against protesters, journalists and/or other members of the public.  What is clear, however, is that there are many instances of arguable claims of use of unnecessary or excessive force, or application of ill-treatment by police officers, which, if proved, would constitute breaches of BOR 3 such that the positive investigative duty on the part of the Government is triggered.

(iii)    The investigation must be capable of leading to identification of the police officers involved in the application of ill-treatment

78.  As accepted by the Court of Appeal in ZN, at §190, to fulfil the investigative duty falling upon the Government, the investigation must be independent from those implicated in the events.  It must also be capable of leading to the identification and punishment of individuals responsible.  A requirement of promptness and reasonable expedition is also implicit in all cases.

79.  Of particular relevance in the present case is the requirement that the investigation should be capable of leading to the identification of the police officers who may have used unreasonable or excessive force, or applied other forms of ill-treatment, against protesters, journalists and/or other members of the public in breach of BOR 3.

80.  In Rodriguez v Uraguay (Communication No 322/1988, UB Doc CCPR/C/51/D/322/1988, 19 July 1994), the Human Rights Committee found established the complaint of torture by a prior regime (which was not disputed), and considered that the current regime in Uraguay was required to take effective measures to carry out an official investigation in order to identify the persons responsible for the torture and ill-treatment and to enable the author to seek civil redress (§14).

81.  In Assenov v Bulgaria (1998) 28 EHRR 652, the European Court of Human Rights held, by a majority, that there had been no violation of ECHR 3 based on Mr Assenov’s allegations of ill-treatment by the police, but unanimously held that there had been a violation of that article by reason of the failure to carry out an effective official investigation into his allegations.  On the issue of the duty to investigate, the Court stated the following at §102:

“The Court considers that, in these circumstances, where an individual raises an arguable claim that he has been seriously ill-treated by the police or other such agents of the State unlawfully and in breach of Article 3, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to ‘secure to everyone within their jurisdiction the rights and freedoms defined in … [the] Convention’, requires by implication that there should be an effective official investigation. This investigation, as with that under Article 2, should be capable of leading to the identification and punishment of those responsible … If this were not the case, the general legal prohibition of torture and inhuman and degrading treatment and punishment, despite its fundamental importance (see paragraph 93 above), would be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity.” [emphasis added]

82.  The above principles have consistently been affirmed and applied by the European Court of Justice (see El-Masri, ante, at §§182-183; Mocanu v Romania (2015) 60 EHRR 19, at §§320-321; and Bouyid, ante, at §§118-120).

83.  In Krastanov v Bulgaria (2005) 41 EHRR 50, the applicant, a high-school teacher, was attacked and severely beaten by masked police officers in a café during a police operation carried out in order to arrest a number of suspected criminals.  The applicant sustained serious injuries, was hospitalized for some 11 days and was on sick leave for almost 6 months.  His civil action for compensation against the Ministry of Internal Affairs was successful, but the preliminary inquiry carried out by the prosecuting authorities and internal inquiry within the Ministry of Internal Affairs did not result in criminal prosecutions against the perpetrators of the ill-treatment of the applicant.  The European Court of Human Rights held that a lack of a thorough and effective investigation into the applicant’s claim that he was ill-treated by police officers which was capable of leading to the identification and prosecution of those responsible constituted a violation of ECHR 3.  At §§57 to 61, the Court stated as follows:

“[57] The Court reiterates that where an individual raises an arguable claim that he has been seriously ill-treated by the police in breach of Article 3, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to ‘secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention’, requires by implication that there should be an effective official investigation. This investigation should be capable of leading to the identification and punishment of those responsible …

[59] In this connection, the Court notes that apparently the prosecution authorities, who were made aware of the applicant’s beating during the proceedings for compensation under the State Responsibility for Damage Act and were, indeed, of the view that his allegations were well-founded (see paragraphs 19 and 24 above), carried out a preliminary inquiry. The Ministry of Internal Affairs also carried out an internal inquiry (see paragraph 41 above). None of these resulted in criminal prosecutions against the perpetrators of the beating. The issue is consequently not so much whether there was an investigation as whether it was conducted diligently, whether the authorities were determined to identify and prosecute those responsible and, accordingly, whether the investigation was effective. In this connection, the Court notes that the fact of the applicant’s beating by police officers was unequivocally established in the course of the proceedings for compensation under the State Responsibility for Damage Act. The only fact which remained to be ascertained was the identity of the police officers who had perpetrated the beating, with a view to bringing criminal proceedings against them. However, the Government have not provided information of any efforts to that effect.

[60] The proceedings under the State Responsibility for Damage Act, which were premised on the strict liability of the authorities and could only result in the award of compensation (see paragraph 45 above), but not in the punishment of those responsible for the ill-treatment, cannot be considered as satisfying the procedural requirements of Article 3 …

[61] Against this background, in view of the lack of a thorough and effective investigation into the applicant’s arguable claim that he was ill-treated by police officers, the Court finds that there has been a violation of Article 3 of the Convention in this respect as well.”

(iv)    Particular need for display of distinctive insignia where masked officers are deployed

84.  The investigative duty arising under BOR 3 serves the following major purposes:

(1)     to secure the effective implementation of the prohibition of torture and inhuman or degrading treatment or punishment by government agents or bodies, including police officers;

(2)     to ensure accountability for improper conduct in violation of BOR 3; and

(3)     to deter violations of BOR 3 through effective criminal laws and disciplinary regulations designed to prevent such conduct (see Bouyid, ante, at §117; Tunc v Turkey (Application No 24014/2015), 14 April 2015, at §171).

85.  Where masked police officers are deployed, the need for them to visibly display some form of distinctive insignia assumes particular importance so that victims could make effective complaints of police ill-treatment and take legal actions against the officers involved.  In Hristovi v Bulgaria (Application No 42679/05, 11 October 2011), the applicants complained of ill-treatment by masked police officers in the course of an arrest operation of the 1^st applicant (who was suspected of being involved in offences of forgery of banknotes) carried out at the applicants’ apartment.  The applicants alleged, in particular, that police officers kicked and beat the 1^st applicant, and threatened the 2^nd and 3^rd applicants with a gun, shouting that they would kill everybody.  These allegations were disputed by the Government of Bulgaria.  The applicants’ complaints at the domestic level were unsuccessful.  The public prosecutor’s office refused to open criminal proceedings against the police on account of a lack of sufficient evidence of an offence.  In their application to the European Court of Human Rights, the applicants complained, inter alia, that the authorities had failed to carry out an effective investigation into the matter.  Finding that there had been no effective criminal investigation into the applicants’ allegations, the Court stated the following concerning deployment of masked officers in police operations:

“[92] The Court would also add that it has serious reservations about the use of masked and armed police officers to conduct an arrest operation in a family setting where there is no risk of armed resistance on the part of the arrestee. Where the circumstances are such that the authorities are obliged to deploy masked officers to effect an arrest, the Court considers that the latter should be required to visibly display some anonymous means of identification - for example a number or letter, thus allowing for their identification and questioning in the event of challenges to the manner in which the operation was conducted.

[93] In the Court’s view, the deficiency it has noted above, and in other cases against Bulgaria (cited above), can fairly be described as conferring virtual impunity on a certain category of police officers. An investigation suffering from such a defect cannot be seen as effective.”

86.  While the Court’s reservation concerning the deployment of masked police officers in the Hristovi case was expressed in the context of an arrest operation conducted in a family setting where there was no risk of armed resistance on the part of the arrestee, the Court made it clear that where the authorities decided to deploy masked police officers, they should be required to “visibly display some anonymous means of identification - for example a number or letter, thus allowing for their identification”.  This requirement is not restricted to the sort of situation in Hristovi.

87.  In Ataykaya v Turkey (Application No 50275/08, 22 July 2014), Tarik Ataykaya, who had not himself taken part in a public demonstration but had just been passing by, was struck on the head by one of many tear-gas grenades fired by the police to disperse the demonstrators, and died a few minutes later.  A criminal complaint was filed by his father against the police but the public prosecutor was unable to identify the police officer who had fired at his son.  An administrative investigation was also carried out.  Neither investigation was successful.  Apparently, the main obstacle to identifying the officer in question was the fact that the policemen were wearing balaclavas at the time of the incident.  In a subsequent complaint lodged by the father to the European Court of Human Rights, it was held that the investigation carried out at the domestic level lacked the requisite effectiveness (§59):

“[52] The Court takes the view that it is not necessary to assess in general terms whether it is compatible with the Convention for balaclavas to be worn by security forces whose task it is to confront demonstrators. It is obvious, however, that this practice has had, in the present case, the direct consequence of giving those responsible immunity from prosecution. On account of that practice, the eyewitnesses were not able to identify the officer who fired at Tarık Ataykaya (see paragraphs 22-24 above) and it was not possible to interview, as suspects or witnesses, all the officers who had used grenade launchers that day.

[53] The Court finds that this circumstance, namely the inability of eyewitnesses to identify the officer who fired the shot because he was wearing a balaclava, is in itself a matter of concern. In this connection it would refer to its previous finding, under Article 3 of the Convention, to the effect that any inability to determine the identity of members of the security forces, when they are alleged to have committed acts that are incompatible with the Convention, breaches that provision (see, mutatis mutandis, Krastanov v. Bulgaria, no. 50222/99, §§ 59 and 60, 30 September 2004, and Rashid v. Bulgaria, no. 47905/99, §§ 63-65, 18 January 2007). Similarly, the Court has already stated that where the competent national authorities deploy masked police officers to maintain law and order or to make an arrest, those officers should be required to visibly display some distinctive insignia – for example a warrant number – thus, while ensuring their anonymity, enabling their identification and questioning in the event of challenges to the manner in which the operation was conducted (see Hristovi v. Bulgaria, no. 42697/05, § 92, 11 October 2011, and Özalp Ulusoy v. Turkey, no. 9049/06, § 54, 4 June 2013). Those considerations are all the more valid in the present case as it concerns a death following a shot fired by a member of the security forces who was wearing a balaclava.

[54] The Court thus finds that the domestic authorities deliberately created a situation of impunity which made it impossible to identify members of the security forces who were suspected of inappropriately firing tear-gas grenades and to establish the responsibilities of the senior officers, thus preventing any effective investigation…” [emphasis added]

88.  The same principles were applied in Dedovskiy v Russia (2011) 52 EHRR 30, where a group of prisoners in a correctional institution were repeatedly assaulted, including with rubber truncheons, and subjected to various humiliating acts, by officers of a special-purpose unit who worn balaclavas and uniforms without identification in the course of an operation over several days for the purpose of “rendering practical assistance in maintaining the detention regime”.  Criminal proceedings against officers of the special-purpose unit were instituted.  However, save for one case of professional misconduct in which the officer was eventually acquitted after trial, the proceedings against the other officers were discontinued on the basis that the victims were unable to identify the officers against whom the allegations were made.  Finding a violation of the investigative duty under ECHR 3, the European Court of Human Rights stated the following:

“[91] Further, the Court considers that, by allowing the special-unit officers to cover their faces with balaclava masks and not requiring them to wear any distinctive signs on their clothing, the domestic authorities knowingly made futile any future attempts to have them identified by the victims. The impossibility for the victims to tell the identically clad rank-and-file unit officers apart was invoked as the main ground for discontinuing the criminal proceedings against those officers (see paragraph 47 above), whereas the proceedings against their commander Mr B. – the only person whose face had not been covered – were discontinued on the charge of abuse of power because he had not beaten anyone himself (see paragraph 49 above). Given that the reports on the use of rubber truncheons did not list the name of the officer who administered the blows, the Court finds that the domestic authorities deliberately created a situation of impunity in which any identification of the officers suspected of inflicting ill-treatment was impossible and an investigation inadequate.

[94] Having regard to the above failings of the Russian authorities, the Court finds that the investigation carried out into the applicants’ allegations of ill-treatment was not thorough, adequate or efficient. There has accordingly been a violation of Article 3 of the Convention under its procedural limb.”

(v)     Duty to put in place an effective system of investigation

89.  Mr Victor Dawes SC (for the Commissioner and the Secretary for Justice) has been at pains to emphasise that the present applications are mounted as systemic challenges against (i) the failure of the Commissioner to require police officers, including in particular AR and STC officers, to display their UI Numbers or other unique identification numbers or marks, and (ii) the failure of the Government to put in place an adequate system to investigate potential cases of breach of BOR 3 by police officers.  Thus, Mr Dawes argues, the court should not be concerned with individual instances where police officers might not have followed the Commissioner’s existing policies regarding the display of the Call-Signs or Alpha IDs, or where CAPO’s investigation failed to identify the relevant officer(s) against whom a complaint of police ill-treatment had been made.

90.  The duty to investigate suspected cases of breach of BOR 3 encompasses both a systemic or structural duty as well as an operational duty.  In D v Commissioner of Police of the Metropolis [2019] AC 196, the claimants, who were victims of a serial rapist, claimed compensation and declarations under ss 7 and 8 of the Human Rights Act 1998 against the police authority on the ground of the police’s failure to conduct effective investigations into allegations of crimes committed against them which they contended constituted violations of the duty to investigate inherent in the right under ECHR 3.  At first instance, Green J gave judgment for the claimants on the basis of serious systemic failings and operational failures by the police and awarded them compensation.  The judgment was affirmed by both the Court of Appeal and the Supreme Court.  One of the issues which the Supreme Court had to decide was whether a person in the claimants’ position must establish a structural or systemic failure, and a failing of a purely operational nature would not suffice for the purpose of establishing a breach of the investigative duty.  The Supreme Court, by a majority (Lord Hughes JSC dissenting), held that either form of failure would suffice.  The following was stated in the judgment of Lord Neuberger of Abbotsbury:

“[81] The claimants, DSD and NBV, succeeded before Green J in establishing that they were entitled to damages from the defendant, the Commissioner of the Police of the Metropolis, as a result of failures by the police properly to investigate serious sexual assaults which had been perpetrated against them. The claims were founded on the propositions that (i) article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms carries with it an obligation on the state to carry out an effective investigation when it receives a credible allegation that serious harm has been caused to an individual, and (ii) there were serious defects in the police investigation of the assaults on the claimants.

[82] The Court of Appeal upheld the decision, and this court takes the same view. However, we disagree on one issue. That issue is whether a person in the claimants’ position needs to establish that the serious defects in the investigation in question were attributable to failures of a structural nature (also referred to as systems, or systemic, failures), and not to purely operational failures (ie failings on the part of the individual police officers responsible for conducting the specific investigation).

[85] In agreement with Lord Kerr JSC, I am of the view, that serious failures which are purely operational will suffice to establish a claim that an investigation carried out pursuant to an article 3 (or indeed an article 2) duty infringed that duty.

[89] That approach appears to be supported by other Strasbourg court decisions involving the investigatory duty in relation to acts of serious ill-treatment by non-state agents. There is no suggestion in MC v Bulgaria (2003) 40 EHRR 20 that that duty is restricted to having effective systems in place: at para 153, the court referred to the duty of a state ‘to enact criminal-law provisions effectively punishing rape and to apply them in practice through effective investigation and prosecution’. In para 167, the court seems to me to have been referring to both systemic and operational failures when it mentioned ‘significant flaws’ in ‘the impugned legislation and practice and its application in the case at hand, combined with the alleged shortcomings in the investigation’ (and see para 179)…”

91.  In passing, I should mention that Lord Neuberger cautioned that the relevant duty should not be interpreted in a way which imposed “an impossible or disproportionate burden on the authorities” (§92).  Lord Kerr of Tonaghmore JSC likewise stated that “simple errors or isolated omissions will not give rise to a violation at the supra-national and the national levels” (§29).

92.  Having regard to the existence of numerous cases of suspected breach of BOR 3 as noted above, the Government is, in my view, under a positive duty to put in place an adequate system to effectively investigate those cases so that the rights under BOR 3 are fully protected.

(vi)    Victims of police ill-treatment are entitled to reasonable identification of the police officers concerned

93.  It is well established that for an investigation to comply with ECHR 3, the victim should be able to participate in the investigation effectively: see Bouyid, ante, at §122; Ataykaya, ante, at §53; and D v Commissioner of Police of the Metropolis [2019] AC 196, at §24.  This requirement entails that when there is credible suspicion of police ill-treatment falling within the scope BOR 3, the system should permit the victim to identify, or at least provide a reasonable means for the victim to identify, the police officer involved in the application of the ill-treatment.  An obvious measure that could and should be taken would be to require police officers each to wear and prominently display an unique identification number or mark when carrying out non-covert duties.

94.  Further, in order to give full force and effect to the rights protected by BOR 3, victims of police ill-treatment should be entitled to reasonable identification of the police officers concerned so that they may themselves commence civil actions or private prosecutions against the officers.  That a person whose rights under the Hong Kong Bill of Rights have been infringed should have a judicial review is clearly recognized and provided by s 6(1) of the Hong Kong Bill of Rights Ordinance, which states that:

“A court or tribunal -

(a) in proceedings within its jurisdiction in an action for breach of this Ordinance; and

(b) in other proceedings within its jurisdiction in which a violation or threatened violation of the Bill of Rights is relevant,

may grant such remedy or relief, or make such order, in respect of such a breach, violation or threatened violation as it has power to grant or make in those proceedings and as it considers appropriate and just in the circumstances.”

95.  The system of identification of police officers cannot be merely through the internal process of the Force.  Otherwise, victims of police ill-treatment would be entirely or largely at the mercy of the Force who can decide whether to take legal or disciplinary actions against the police officers responsible for the application of the ill-treatment.

(vii)   Current system of disclosure of police identities and investigation fails to meet the procedural duty under BOR 3

96.  The existence of an effective system which allows identification of police officers who may have committed acts in violation of BOR 3 is integral to an effective system of investigation, and is essential to achieve the purpose of ensuring accountability for ill-treatment by police officers.  It also enables victims of police ill-treatment to start civil actions and private prosecutions against the police officers concerned.  While even the best of systems of investigation may not be able to lead to a positive identification of the relevant police officer(s) in an individual case, a system, to be effective, must at least be reasonably capable of leading to the identification of the police officers concerned.  For this purpose, police officers ought to be required to each wear and prominently display a unique identification number or mark while carrying out non-covert duties.  It is not necessary that the UI Numbers, which is just one possible form of identification, must be displayed.  What is necessary, though, is that the identification number or mark must be unique to each police officer (as in the case of an UI Number) to facilitate identification and avoid the obvious risk of confusion, and it must be worn and displayed prominently to allow victims and eyewitnesses a reasonable opportunity to identify the police officers concerned and file effective complaints.

97.  In Hentschel and Stark, ante, the European Court of Human Rights made the following observations:

“[99] … the deployment of helmeted officers with no identifying individual insignia and the consequent inability of eyewitnesses and victims to directly identify the officers alleged to have committed the ill-treatment complained of had the capacity to hamper the effectiveness of the investigation from the outset. Such a situation required particular investigative efforts by the investigating authorities to establish the cause of the victims’ injuries, the identities of the persons responsible, whether police officers used force and, if so, whether such force was proportionate to the security situation which confronted the deployed units. The Court reiterates that any deficiency in an investigation which undermines its ability to establish the facts or the identity of persons responsible will risk falling foul of the standard of effectiveness required under the procedural limb of Article 3 (see Hristovi, cited above, § 86)…

[103] After having assessed all relevant elements and circumstances of the investigation in this particular case, the Court concludes that there has not been an effective investigation, since the deployment of helmeted police officers without identifying insignia and any difficulties for the investigation resulting from it were not sufficiently counter-balanced by thorough investigative measures. Consequently, the Court holds that there has been a violation of Article 3 of the Convention under its procedural head.”

98.  The court is fully alive to police officers’ concern of disclosing their individual identities when carrying out duties in relation to the recent public order events having regard to the rampant doxxing campaigns mounted against them which have been strongly denounced by the Court of Appeal in Junior Police Officers’ Association of Hong Kong Police Force v Electoral Affairs Commission [2019] HKCA 1197, at §§4, 17-20.  However, as a matter of principle, such concern cannot of itself override the duty to maintain an adequate system to investigate suspected cases of breach of BOR 3 (see Hristovi, ante, at §91).  Furthermore, the requirement to wear and prominently display a unique identification number or mark would not directly lead to the disclosure of a police officer’s identity.  On the other hand, it would greatly facilitate a complaint of police ill-treatment by the victim and any subsequent investigation of such complaint.  Where necessary, the victim can apply to the court for disclosure of the identity of the police officer involved, and the court will be able to determine, after consideration of the available evidence and balancing all relevant circumstances, whether the police officer’s identity should be disclosed, and impose appropriate restrictions on the use of such information as may be necessary.

99.  The current practice of the Commissioner requiring police officers (other than STC officers) to wear and display the Call-Signs and STC officers to wear and display the Alpha IDs when deployed in Operation TIDERIDER fails to meet the standard of effectiveness of investigation required under the procedural limb of Article 3:

(1)     A Call-Sign is not unique to the police officer to whom it has been assigned (as in the case of an UI Number).  After an officer who has been assigned a particular Call-Sign is transferred out of his platoon / team, the same Call-Sign is recycled and allocated to another officer taking up his position in the platoon / team.  Moreover, the evidence before the court discloses instances where the same Call-Sign was worn and displayed by multiple officers on the same occasion, and also instances where police officers simply did not wear and display the Call-Signs, or used other objects to hide them from sight.  While these may be said to be individual instances of failure of the system, there is absence of evidence that any adequate measure has been put in place by the Commissioner to ensure that the Call-Signs are properly worn and displayed by police officers deployed in Operation TIDERIDER, and to take action against officers who have failed to properly wear and display the Call-Signs.

(2)     The Alpha ID system also suffers from the same deficiency that an Alpha ID is not unique to the police officer to whom it has been assigned (as in the case of an UI Number).  The fact that the Alpha ID is only attached to the back of a STC officer’s helmet also substantially impairs its effectiveness as a means of identification.  There were also instances where STC officers belonging to the same team and deployed at the same time and location did not attach the assigned letters to their helmets and only the team call sign was displayed.  There is likewise an absence of evidence that any adequate measure has been put in place by the Commissioner to ensure that the Alpha IDs are properly attached to the helmets of STC officers deployed in Operation TIDERIDER, and to take action against officers who have failed to properly wear and display the Alpha IDs.

100.  In passing, I should mention that the applicants have, in their evidence and submissions, raised numerous other points of criticism against the Call-Sign and Alpha ID systems.  Having regard to the broad conclusions that I have reached, I do not consider it necessary to deal with those points separately.  Other articles of the Basic Law or Hong Kong Bill of Rights relating to the freedom of the press and freedom of expression relied upon by HKJA do not, in my view, add anything of substance to the present discussion.

101.  An investigation, to comply with the procedural duty arising under BOR 3, must also be conducted by persons who are “independent” of the suspected perpetrators.  For this purpose, independence requires both:

(1)     “institutional” (or “hierarchical”) independence: see Mikiashvili v Georgia, Application No 18996/06 (9 October 2012), at §87; Najafli v Azerbaijan, Application No 2594/2007 (October 2012) at §52; and Ramsahai v Netherlands (2008) 46 EHRR 43, at §§335 & 340); and

(2)  “practical” independence (Tunc, ante, at §177).

An independent oversight of the primary investigative body which is not independent will not provide a sufficient safeguard for the purpose of satisfying the requirement of independent investigation under BOR 3 (Hentschel, ante, at §85; Ramsahai, ante, at §337).

102.  In relation to the two-tier mechanism for handling complaints against the Force in Hong Kong:

(1)     CAPO is part of the Force itself.  It is headed by a Senior Superintendent answerable to the Chief Superintendent in command of C&IB and ultimately to the Commissioner, who is charged with the “supreme direction and administration of the police force” under s 4 of the PFO.  It is clear that CAPO is not institutionally independent of the Force.  Further, there is no segregation of personnel of CAPO from the rest of the Force.  CAPO officers are generally experienced police officers who have already served in the Force for a long period of time.  They are chosen from other units or branches of the Force and serve in CAPO for a limited duration of about 2-3 years, after which they would return to the Force generally.  In other words, CAPO officers are career police officers.  CAPO cannot, in my view, be regarded as practically independent of the Force either.

(2)     IPCC is institutionally and practically independent of the Force.  However, it lacks the necessary investigative powers of its own.  It has no power to overturn the decisions of CAPO.  If it has queries about CAPO’s findings or disagrees with CAPO’s conclusion, it may request CAPO to make clarifications or carry out further investigation.  It may disclose its disagreement with the views of CAPO to the Chief Executive and/or the public, but it has ultimately no power to make any binding determination.

103.  In all, the two-tier mechanism for handling complaints against the Force in Hong Kong fails to meet the requirement of independent investigation under the procedural limb of BOR 3.

VI     NO MISINTERPRETATION OR MISAPPLICATION OF PGO OR PFO

104.  In HCAL 1747/2019, Mr K K Chan complains that the Commissioner’s decision 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 uniform was premised on a misinterpretation or misapplication of §15 of the GPO.  The same complaint is made by Mr Yeung in HCAL 2671/2019.

105.  On the other hand, in HCAL 1753/2019, Mr Kwok and Mr Leung complain that the Commissioner’s decisions to equip STC officers with uniform not identifying themselves individually while carrying out duties (i) between January 2017 to 13 June 2019, and (ii) since 14 June 2019, are contrary to:

(1)     s 22 of the PFO;

(2)     §20-03 of the PGO; and/or

(3)     common law.

106.  These complaints are all directed against STC officers only.

107.  I shall first deal with the complaint based on PGO §15 and §20-03, the relevant texts of which have already been set out in §§19, 27 and 28 above.  The PGO is made by the Commissioner pursuant to s 46 of the Police Force Ordinance, Cap 232, which states as follows:

“(1) Subject to subsection (2), the Commissioner may from time to time make such orders as he thinks expedient to enable him to administer the police force, render the police force efficient in the discharge of its duties and for carrying out the objects and provisions of this Ordinance, and in addition, such orders may provide for any of the matters specified in section 45[16].

(2)  Any orders made under this section shall be called ‘police general orders’ (警察通例) and shall not be inconsistent with this Ordinance or any regulations under section 45.”

108.  The usual contextual and purposive approach applies to the construction of the PGO, as any other instrument or regulation made under an Ordinance.

109.  PGO §15, which concerns “uniform” and “dress and appearance”, does not expressly require UB officers, generally or of any particular units such as the STC, to display their UI Numbers or ranks or other individual identification on their uniform when on duty.

110.  It may be argued that PGO 15-01(e), which provides that an officer shall “only wear Force insignia appropriate for his rank”, gives rise to an implied duty on the part of an officer to wear an appropriate Force insignia on his uniform.  However, even if some such duty can be spelt out from the PGO, it is clear that the Commissioner may waive, or dispense with, any particular requirement regarding uniform.  PGO 15-04 expressly states that “UB officers shall wear uniform when on duty unless specifically exempted … or ordered otherwise by a Formation Commander”.

111.  The evidence before the court is that the Force has never required STC officers to display their UI Numbers and/or ranks or other individual identification on their uniform since the establishment of the STC in 2014.  There is no reason to believe that such policy has not been approved by the Commissioner.

112.  As noted above, Mr K K Chan relies only on an alleged misinterpretation or misapplication of GPO §15 in support of his application for judicial review.  In my view, he has failed to establish any misinterpretation or misapplication of GPO §15 by the Commissioner.  It follows that his application in HCAL 1747/2019 must be dismissed.

113.  In so far as PGO §20-03 is concerned, it requires an officer exercising statutory powers to disclose certain minimum personal information (namely, rank and UI number, or rank and surname, depending on his/her rank) after a request to identify himself/herself has been made.  It does not require STC officers to display their UI Numbers and/or ranks or other individual identification on their uniform.  Further, the evidence is that the Commissioner has given policy approval to waive the requirements of PGO §20-03 for officers deployed in Operation TIDERIDER as from 27 November 2019 until the conclusion of that operation (on a date yet to be announced).

114.  Section 22 of the PFO, relied upon by Mr Kwok and Mr Leung in HCAL 1753/2019, does not add anything to debate.  It states as follows:

“Clothing

Every police officer shall be provided with such articles of uniform and equipment as may be necessary for the effectual discharge of his duties. Such articles shall be kept and used according to police orders.”

115.  Again, there is nothing on the face of this section which could support the argument that STC officers are required to display their UI Numbers and/or ranks, or identify themselves individually, on their uniform.

116.  The question before the court is not whether the absence of any practice or policy of the Force to require STC officers to display their UI Numbers or ranks or individual identification on their uniform is good or bad.  The question is simply whether such requirement can be spelt out from PGO §15 and §20-03 and/or PFO s 22.  In my view, the answer is “no”. Even if some such requirement arises under the PGO, it has been waived by the Commissioner.  No question of interpretation of the relevant provisions of the PGO and PFO arises in the present case.

117.  Lastly, in so far as common law duties are concerned, I am not persuaded by the submissions of Mr Ernest Ng (for Mr Kwok and Mr Leung) that there is any support for the proposition that, under common law, police officers when carrying out non-covert duties are required to wear or display any unique identification numbers or marks on their uniform.

118.  In passing, I should mention that Mr Martin Lee, SC has argued that the duty of candour is engaged not only where leave to apply for judicial review has been granted by the court, but also where the court directs a rolled-up hearing of the leave and substantive applications. Although this is an issue of considerable importance, it does not strictly arise for determination in the present cases.  I shall leave it for future consideration should it become necessary to do so.

VII     STANDING AND EXHAUSTION OF ALTERNATIVE REMEDIES

119.  The applicable principles on the issue of standing are well-established.  I attempted to summaries those principles in Kwok Cheuk Kin v Commissioner of Police [2017] 6 HKC 93, at §34, and do not propose to repeat them here.

120.  I consider it to be clear that the applicants in HCAL 2671/2019, HCAL 2703/2019 and HCAL 2915/2019 have sufficient interest in the matters to which their applications relate.

121.  On the other hand, in so far as the applicants (Mr Kwok and Mr Leung) in HCAL 1753/2019 are concerned, there is no evidence or suggestion that either has been subjected to any form of ill-treatment by police officers amounting to a violation of BOR 3, or has made any relevant complaint which has not been effectively investigated.  Further, it is plain that there are other parties who have a more direct and immediate interest to raise the relevant complaints considered in this judgment.  The fact that Mr Kwok and Mr Leung personally participated in some public assemblies or processions relating to the Bill between 31 March 2019 and 31 August 2019 and were unable to identify the STC officers individually because they did not wear or display any unique identification numbers or marks, does not give them a sufficient interest to apply for leave to apply for judicial review.  I am of the view that they lack the necessary standing to make the application.

122.  In relation to the issue of “alternative remedies”, in view of the fact that the challenges brought by the applicants in these applications are systemic in nature, I do not consider that there is any validity in Mr Dawes’ submission that they are required to exhaust the so-called alternative remedies under the existing two-tier complaints mechanism before they may be permitted to make the present applications for judicial review.

VIII    DISPOSITION

123.  I grant leave to apply for judicial review in HCAL 2671/2019, HCAL 2703/2019 and HCAL 2915/2019, and make the following declaration in those applications:

“The failure of the Commissioner to establish and maintain an effective system to ensure that every police officer deployed in carrying out non-covert duties in Operation TIDERIDER wears and prominently displays an identification number or mark which is unique to that officer violates Article 3 of the Hong Kong Bill of Rights”.

124.  In HCAL 2915/2019, I grant the following further declaration:

“The Government of the HKSAR is under a duty, pursuant to Article 3 of the Hong Kong Bill of Rights, to establish and maintain an independent mechanism capable of conducting effective investigation into complaints of suspected ill-treatment by police officers in contravention of Article 3 of the Hong Kong Bill of Rights, and that the existing complaints mechanism involving the Complaints Against the Police Office, with oversight by the Independent Police Complaints Council, is inadequate to discharge this obligation.”

125.  I grant leave to HKJA to file the 5^th Affirmation of MAK, San Han Helena in HCAL 2915/2019, and make an order in terms of its summons dated 23 June 2020.

126.  Other than the declaration referred to in §123 above, the rest of the application in HCAL 2671/2019 is dismissed.

127.  I refuse to grant the order of mandamus sought by the applicant in HCAL 2703/2019 because it is, in principle, a matter for the Commissioner to devise an appropriate system to meet the declaration referred to in §123 above.

128.  The applications for leave to apply for judicial review in HCAL 1747/2019 and HCAL 1753/2019 are dismissed.  The applications to amend the Forms 86 in those cases are likewise dismissed.

129.  On the question of costs, I order:

(1)     the Commissioner to pay 80% the costs of the applicant in HCAL 2671/2019 (the reduction being on account of the fact that the applicant has only been partially successful in his application), to be taxed if not agreed, with certificate for 2 counsel;

(2)     the Commissioner to pay the costs of the applicants in HCAL 2703/2019, to be taxed if not agreed, with certificate for 2 counsel; and

(3)     the applicants in HCAL 1747/2019 and HCAL 1753/2019 to pay the costs of the Commissioner, to be taxed if not agreed, with certificate for 2 counsel.

130.  The question of costs in HCAL 2915/2019 shall be dealt with when the court hands down its judgment on the remaining issues.