TSANG HO MING v. COMMISSIONER OF POLICE AND ANOTHER

HCAL 1428/2022

[2023] HKCFI 1518

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1428 OF 2022

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D E C I S I O N

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A.  Introduction

1.  It is unfortunate that much of the Applicant’s written material filed in this case employs an unhelpfully aggressive or sarcastic tone.  But I have overlooked that and, instead, I have sought to focus on what seem to me to be the core elements of his intended challenge, and whether they contain the public law flaws or failures which the Applicant suggests.  Deciding those points does not require the Court to engage with the Applicant’s numerous questions or exclamations like “What the hell??????????????????”, or “Really?”.

2.  The Applicant is a young man born in 2002.  He has been living in the Shau Kei Wan/Sai Wan Ho district for 20 years.  Towards the end of 2022 and in early 2023, when he was at or around Sai Wan Ho MTR station and Shau Kei Wan MTR station, he was asked by the police to produce his identity card (“HKID card”) on a number of occasions in what is usually called a ‘stop and search’ operation.

3.  By a Form 86 filed on 16 December 2022, the Applicant, acting in person, sought leave to apply for judicial review to challenge the ‘stop and search’ operations conducted on him.  I later granted leave for the Applicant to amend his Form 86 twice, bringing his Form 86 to ‘version 3.0’ (in his own description).  He later sought to further amend it to ‘version 4.0’ on 26 January 2023, by adding a further proposed ground of complaint.  Albeit not without some hesitation, I would also grant leave to allow this amendment.  I will therefore consider the case mainly by reference to that latest version of the Form 86.

4.  On 30 December 2022, I gave directions for the putative respondents to file and serve an Initial Response to the leave application, and leave for the Applicant to file a Reply.  I also said that, depending on the content of the Initial Response and the Reply (if any), the Court shall decide whether the application to be dealt with on paper.

5.  The original timetable set by me was extended, first as a result of the Applicant’s attempt to obtain legal aid, and later to allow more time to the parties to deal with the arguments of the other.

6.  The Department of Justice (“DoJ”), on behalf of the putative respondents, filed an Initial Response and the Applicant filed his Reply, both within the timetable as set and later extended by the Court.  But the Applicant later filed a what he called a supplementary document to his reply (“Supplementary Reply”) without leave of the Court.  The DOJ also filed a supplemental initial response in response to the Supplementary Reply (though I do not think I need to direct much focus to that document, for reasons apparent below).

7.  Having considered all the materials available, I have come to the view that this application can appropriately be dealt with on paper.

8.  This is my Decision.

B.  The Relevant Incidents

B.1  Which Incidents to Consider?

9.  In the first version of the Form 86, the Applicant identified three occasions where he was stopped by the police and asked to produce his HKID card.  The relevant dates of the incidents were identified respectively as (1) around October 2022, (2) a week before 28 November 2022, and (3) on 28 November 2022.

10.  But in Form 86 ‘version 2.0’ – if I am to adopt the Applicant’s own terminology – he dropped the occasion said to have happened in October 2022, citing mistaken memory about the exact dates.

11.  In Form 86 ‘version 3.0’, which was filed on 10 January 2023, the Applicant added a further “stop and search” which he said occurred on 9 January 2023.

12.  In the Supplementary Reply, the Applicant referred to a further ‘stop and search’ which he said occurred on either 2 or 3 February 2023. The original Form 86 was filed on 16 December 2022.  Thus, both the ‘stop and search’ incidents which he says happened in January and February 2023 post-dated the Form 86.

13.  Insofar as I understand the Applicant’s case (and though he does refer to being “somewhat repeatedly harassed by police”), he is not alleging that all the ‘stop and search incidents are somehow part of a wider co-ordinated scheme targeting him specifically.  As such, each ‘stop and search’ can be viewed individually.  As the last two alleged ‘stop and search’ incidents which occurred after the original Form 86 could not be said to be a further development from the first two (though the Applicant obviously thinks what happened is consistent with them), I will only consider the three ‘stop and search’ incidents which occurred in November 2022 and January 2023 (so excluding from consideration the last incident which is said to have occurred in February 2023).  I do not think fairness requires or permits dealing with the last occasion.  In any event, the particular points which the Applicant seeks to raise can be demonstrated and made good, if at all, by reference to the first three occasions.

14.  I would point out that there is something of a dispute about what happened in the three relevant “stop and search” incidents. The Applicant’s evidence comes from the Form 86 and his affirmations.  The police’s version comes the relevant policemen, given in the form of a “witness statement” usually deployed in criminal investigation and produced as an annex to the DoJ’s Initial Response.

15.  Ultimately, however, I do not think it necessary to resolve the factual dispute for the purpose of dealing with Applicant’s intended challenge.

B.2  One week before 28 November 2022

16.  The first ‘stop and search’ occurred one week before 28 November 2022 at the unpaid area near Exit A of the Shau Kei Wan MTR station.

17.  The Applicant said he was walking down the escalator stairs and was fully concentrating on his phone held in his hand.  A uniformed police officer (“PC Chow”) waved his hand (between the Applicant’s face and the phone) to draw the Applicant’s attention and asked him to produce his HKID card.  The Applicant did so.  He said that was all that he was asked to do.  No search was conducted on him.  The Applicant says he never had eye contact with the Applicant prior to being asked to produce his HKID card.

18.  PC Chow said he was patrolling with his team along the Island Line of the MTR at the time.  At about 12:13 hours, he spotted the Applicant, who was walking in PC Chow’s direction.  When PC Chow had eye contact with the Applicant, the Applicant reacted suspiciously and avoided further eye contact with PC Chow. The Applicant then avoided walking in PC Chow’s direction.  PC Chow spotted that the movement of the Applicant’s right hand was unnatural.  He hid his right hand at his back.  PC Chow suspected that the Applicant may be in possession of dangerous drugs in his right hand.  PC Chow intercepted the Applicant, and requested him to produce his proof of identity, according to section 54 of the Police Force Ordinance, Cap 232 (“PFO”).  PC Chow searched the Applicant’s two hands and the two front pockets of his trousers. No dangerous drugs were found.  The usual HKID record check also reviewed that the Applicant was not on the wanted list.  The Applicant was allowed to leave at about 12:15 hours.  The whole process took about two minutes.

B.3  28 November 2022

19.  The second ‘stop and search’ occurred on 28 November 2022 at the lobby of Sai Wan Ho MTR station, near Exit B.  The Applicant was approached by another uniformed policeman (“SPC Ng”). He was asked to produce his HKID card and he did so.  Again, the Applicant said it was all that he was asked to do and no search on his body was conducted.

20.  SPC Ng said he was patrolling with another uniformed policeman along the Island Line from Taikoo station to Chai Wan station at the relevant time.  At about 13:22 hours, he spotted that the Applicant was clenching his right fist upon seeing SPC Ng. SPC Ng said he suspected that the Applicant was in possession of dangerous drugs.  SPC said he then intercepted the Applicant according to the powers under section 54(2) of the PFO.  The Applicant opened his right hand for SPC Ng’s inspection voluntarily.  SPC Ng also checked the right pocket of the Applicant’s trousers.  No dangerous drugs were found.  The usual HKID card check also reviewed that the Applicant was not a wanted person.  The Applicant was allowed to leave at 13:23 hours.  The entire process took about one minute.

B.4  9 January 2023

21.  The third ‘stop and search’ occurred at the Shau Kei Wan MTR Station on 9 January 2023.  The Applicant did not give much detail of that occasion to start with, but provided his version of events mainly in reply to what was said in the Initial Response.  Therefore, I shall deal with the police officers’ version first.

22.  The officers involved say that they were part of a Police party conducting an anti-crime patrol at the station.  At 11:34 hours, one officer (“PC Yiu”) was conducting a ‘stop and search’ on a Chinese male (not the Applicant), when another officer (“Sgt Lee”) spotted the Applicant approaching the Police party and standing approximately 1 to 2 meters away.  PC Yiu spotted that the Applicant looked evasive and suspicious, and that the Applicant was staring at the search being conducted.  The Applicant was also observed to take out his smart phone, appearing to take photos or videos of the stop and search.  The Applicant was asked to keep a distance, but the Applicant refused and remained in close proximity to the Police party.  When the Applicant then suddenly covered his rucksack with his arms, PC Yiu suspected that he was in possession of prohibited items and requested to conduct a stop and search on him, pursuant to section 54(2) of the PFO.

23.  Upon search of the Applicant’s rucksack, two white oval shaped pills wrapped in tinfoil package were found.  When asked what they were, the Applicant replied to PC Yiu that the pills were “毒品” (dangerous drugs), then the Applicant said they were in fact anti-nasal allergy pills bought from a pharmacy and he was just joking.  PC Yiu believed from the appearance of the pills that they were not dangerous drugs.  Sgt Lee warned the Applicant not to mislead the police whilst PC Yiu continued to search the Applicant and his personal belongings.  When the Applicant was waving his arms around, he was asked to cooperate.  The usual HKID record check was conducted and the result was that he was not a wanted person.  No suspicious items were found.  At 11:39 hours, so about five minutes after the Applicant was first spotted, the Applicant was allowed to leave.

24.  The Applicant says he “supervised” police officers exercising their power by using his mobile phone to film them in operation (at the time checking the ID of another male).   He had to keep a “reasonable distance” so that he could see their badge number because there were no other ways to identify them.

25.  He said the officers were wrong to say he was filming the other male whose ID was being checked because he was indeed filming the police.  He did not deny staring at the police officers, but disagreed that that was an act arousing suspicion.

26.  He said the police officers’ observation that he suddenly covered his rucksack with his arms was fake.  He did not say “these are drugs” in answer to police’s question.  What he said was “these may be drugs” (“可能係毒品來嘅”).  The police officer then accused him of misleading a police officer.  He said he did not mislead because “毒品” was a direct translation from “drugs” which could refer to both useful medicines and addictive harmful substances.  He gave the police officers permission to send his anti-histamine for lab testing.

27.  In response to the observation that he was waving his hand, he suggested that was legitimate and normal hand gesture.  He says he did demand a plain clothes officer to show his warrant card.  The officer swung his cardholder (with the card inside) and said he had done it. It was wrong for the police officers now to say that he did not ask the concerned officers to produce their warrant cards in each of the three ‘stop and search’.

B.5  Incidents Generally

28.  The Applicant has sought to respond to the various matters canvassed by the DOJ in the initial response, including by reference to the police officers’ witness statements.  I do not think it necessary to deal with those responses in detail, though I note that that the Applicant has sought to explain, or raise questions/exclamations, as to why the police officers cannot be right, and how they are now seeking to cover up their erroneous and unlawful behaviour.

C.  Targets of Challenge

C.1  The Form 86 Challenge

29.  Whilst the Applicant identified only the actual ‘stop and search’ incidents as the targets of challenge in the original Form 86, apparently he also targets the statutory provisions he thought were invoked by the police in conducting the ‘stop and search’.  From the relief he sought in the Form 86, he seems to have understood that either section 54(1) of the PFO or section 49(1) of the Public Order Ordinance Cap 245 (“POO”) was invoked by the police.

30.  He sought the following relief in the Form 86:

(1)  an order of certiorari to quash the Decisions to conduct “stop and search” on him;

(2)  a declaration that on proper interpretation, the power to require production of proof of identity for inspection by police officers can only be exercised for purposes connected with immigration control under the power authorised by section 17C(2) of the Immigration Ordinance Cap 115 and for purposes of crime prevention under section 49 of the POO or section 54(2) of the PFO;

(3)  a declaration that 54(1)(a) of the PFO and section 49(1) of the POO are unconstitutional, because (a) they contravene the fundamental freedom provisions in Articles 28 and 31 of Basic Law (“BL28” and “BL31”) and Article 5(1) of the Hong Kong Bill of Rights (“BOR5”); and (b) “in a suspicious manner” and “reasonably believes” in the POO and PFO is overly wide and vague, which violates the public due process through being void for vagueness;

(4)  or otherwise, the court of law should define and give specific range of “acts in suspicious manner” or whether a solid “probable cause” is required for a police officer to request “stop and identify” from random civilians locomoting on the sidewalk/any public space/mass transit under the power authorized to the police in section 54(1) of the PFO and section 49(1) of the POO.

C.2  The Relevant Provisions

31.  Before turning to consider the true scope of the challenge intended or permissible in these proceedings, it is helpful to set out the various statutory or other provisions which may be relevant to the necessary analysis.

32.  BL28 reads:

The freedom of the person of Hong Kong residents shall be inviolable.

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

33.  BOR5 reads:

(1)  Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

(2)  Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

(3)  Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment.

(4)  Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

(5)  Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation

34.  The reference to “reasonably believes” is taken from section 49 of the POO, and the reference to “in a suspicious manner” is taken from section 54(1) of the PFO.

35.  Whilst reference is made to section 49 of the POO in the relief sought, the bulk of the Applicant’s argument in his Form 86 and written submissions focus on section 54(1) of the PFO, and the phrase “acts in a suspicious manner”.

36.  Section 49(1) of the POO reads:

Where a police officer reasonably believes that it is necessary for the purpose of preventing, detecting, or investigating any offence for which the sentence is fixed by law or for which a person may (on a first conviction for the offence) be sentenced to imprisonment, the officer may require any person to produce proof of his identity for inspection, and any person who fails to comply with any such requirements commits an offence and is liable on summary conviction to a fine level 3 and to imprisonment for 6 months.

37.  Section 54(1) of the PFO reads:

If a police officer finds any person in any street or other public place, or on board any vessel, or in any conveyance, at any hour of the day or night, who acts in a suspicious manner, it shall be lawful for the police officer-

(a)  to stop the person for the purpose of demanding that he produce proof of his identity for inspection by the police officer;

(b)  to detain the person for a reasonable period while the police officer enquires whether or not the person is suspected of having committed an offence at any time; and

(c)  if the police officer considers it necessary to do so-

(i)   to search the person for anything that may present a danger to the police officer, and

(ii)  to detain the person during such a period as is reasonably required for the purpose of such a search.

38.  Section 54(2) of the PFO is similar to section 54(1).  The main difference being that the police power is not triggered by a police officer finding a person acting “in a suspicious manner” but that a police officer “reasonably suspects” that a person has committed or is about to commit or is intending to commit any offence.  Section 54(2) reads:

If a police officer finds any person in any street or other public place, or on board any vessel, or in any conveyance, at any hour of the day or night, whom he reasonably suspects of having committed or of being about to commit or of intending to commit an offence, it shall be lawful for the police officer-

(a)  to stop the person for the purpose of demanding that he produce proof of his identity for inspection by the police officer;

(b)  to detain the person for a reasonable period while the police officer enquires whether or not the person is suspected of having committed an offence at any time; and

(c)  to search the person for anything that is likely to be of value (whether by itself together with anything else) to the investigation of an offence that the person has committed, or is reasonably suspected of having committed or of being about to commit or of intending to commit; and

(d)   to detain the person during such a period as is reasonably required for the purpose of such a search.

D.  Proposed Grounds of Review

39.  Most of the proposed grounds set out in the Form 86 are formulated with a systemic challenge against section 54(1) of the PFO in mind – and, to a lesser extent, section 49(1) of the POO.  Indeed, I note that the Applicant has stated in terms that he is mainly targeting section 54(1) of the PFO, and has “little grounds to challenge” section 49(1) of the POO.

40.  For the moment, it suffices to identify the grounds proposed by the Applicant in the Form 86 relatively broadly, as follows (by reference to the headings and then my summary of the rest).

41.  Ground 1: The terminology of “reasonably believes” and “suspicious” or “acts in a suspicious manner” is overly wide and somewhat arbitrary, and is unconstitutionally vague.

(1)  The powers given to police officers to require a person being “pulled over” to produce identification include a prerequisite condition largely dependent on an officer’s subjective judgment or his belief as to whether a person is acting or behaving “suspiciously”.

(2)  That power is arbitrary and capricious, because the phrases are overly wide and vague, and a corrupt officer may just exercise his power arbitrarily based on activity which seems or is deemed as a criminal-like action which only fits his narrative.

(3)  It remains unclear to the general public what range of behaviour or specific body action can be seen as “suspicious”, or deemed as “suspicious” in the eyes of a police officer.

(4)  There is insufficient precision to enable the citizen to regulate his conduct so that he is able, if need be with appropriate advice, to force it to a degree that is reasonable in the circumstances the consequences which a given action may entail.

(5)  Another problem is that the police often use a falsified suspicion with weak reasoning.

(6)  The vagueness encourages arbitrary detention or restraint, and arbitrary conviction on charges against a person who refuses to produce his ID to police officers.

(7)  The occasions of the arbitrary stops of the Applicant seem like “targeting”, with a problem of bias sampling.

(8)  It is objectionable that the suspicions required by section 54(1) are not required to have a clear connection with any specific underlying crimes, which is likely to give the public a bad impression on law enforcement and disproportionately infringes fundamental rights of citizens.

42.  Ground 2: A “stop and identify” or requiring a person to produce his/her ID for inspection or to identify him/herself violates and breaches the fundamental right of individuals against arbitrary search and detention in contravention of BL28.

(1)   Requiring a person to identify himself is no different from search and seizure and constitutes “being temporarily detained or detention” by a policeman.

(2)   This is because, practically, a person will have to stay at the site for a fixed period of time in order to show his identity documents to the policeman.

(3)   Hence, BL28 and/or BOR5 is engaged when police stop a citizen and asked him to show identity proof.

(4)   Stopping should only be permitted if a police officer has “probable cause”.

(5)   The Court should ensure that a government agency such as the Police Force exercise of discretion is both responsible and reasonably explained.  But statutes authorising police to demand production personal identification is not reasonably explained or explained in detail.

43.  Ground 3: A policeman should refrain from making any investigations of suspicious circumstances and hence require proof of identity.  What should be require is a “probable cause” to make an arrest but not just “reasonable suspicion”.

(1)   The concept “probable cause” is a few levels higher in logic and apparent evidence must present at the time than that of “reasonable suspicion” or “reasonable cause”.

(2)   The burden of proving that a person randomly walking in the street is not a criminal or not “suspicious” or “acting/looking suspicious” should not fall on that person.

(3)   The police officers in his case were not performing a legitimate function of investigating suspicious conduct of prevention of crimes when the officers decided to stop him.

(4)   No searches of processions were ever conducted on him, and he did not possess any weapons, and there is a genuine issue as to whether there existed a material fact showing that he was looking so suspicious or acting in a suspicious manner/way.

(5)   Instead, he had fallen victim to a widespread pattern of “suspicionless and age-based stops and identify towards young adults” (sic).

44.  In passing, I note that the Applicant did not specify whether he was referring to section 54(1) of the PFO (“acts in suspicions manner”) or section 49 of the POO (“reasonably believes”).  Neither provision contains the text “reasonable suspicion”.

45.  Ground 4: Both section 54(1) of the PFO and section 49(1) of the POO set a vague norm and standard, and so are legally uncertain, and not prescribed by law.

(1)   The vagueness in section 54 (1) of the PFO is highlighted by the standard of “suspicious manner” which is to a large extent dependent on the sole discretion of judgment by a police officer.

(2)   Even though section 49(1) of the POO clearly states the powers are for the purpose of crime prevention, the power is still triggered by a “reasonable belief” of a police officer.

(3)   These provisions directly authorise executive measures which have the effect of directly restricting freedom and rights protected under BL28 and BOR5.

(4)   Looking suspicious or acting suspicious is too unspecific to a circumstance, so that everyone can fall into this category.

(5)   Further, a person looking suspicious or appearing suspicious is not a crime.

(6)   Hence the problem associated with legal uncertainty.

46.  Ground 5: On the Applicant’s interpretation of section 54(1) of the PFO, that provision is unreasonable in law.

(1)   First, section 54(1) must have a different meaning from section 54(2), or otherwise one of the subsections will be made redundant.

(2)   Section 54(1) sets too low a bar by only requiring a police officer to find a citizen acting suspiciously (without context), rather than requiring a founded suspicion that the person is engaged in criminal activity.

(3)   The same problem exists if comparing sections 49(1) and (2) of the POO.

47.  Ground 6 (added in the Form 86 “version 4.0”): Section 54(1) of the PFO and section 49(1) of the POO contravene the fundamental right against self-incrimination guaranteed by Article 11 of the Hong Kong Bill of Rights (“BOR11(2)(g)”).

(1)   There may be many scenarios where a person may have a reasonable belief that identifying himself to a police officer will be self-incriminating, e.g. the person stopped is a wanted fugitive or an illegal immigrant.

(2)   To present one’s HKID card is equivalent to answering the question “what is your name?” or “how old are you?”.

(3)   The two statutes force, in a threatening manner using imprisonment or fine to compel, a suspect to disclose his name, his address, and his sensitive information to a police officer.

(4)   The Court would have to evaluate carefully to make certain that the person detained or arrested was not being penalised for the exercise of his right to refuse to answer.

48.  Although there are the six intended grounds of review raised, apparently to challenge the constitutionality of section 54(1) of the PFO and section 49(1) of the POO, I agree with Ms Heidi Lee, Senior Government Counsel (who signed the Initial Response together with two other Government Counsel, Mr Eric Kwong and Ms Crystal Wong) that the various grounds essentially boil down to the following two issues:

(1)   whether section 54(1) of the PFO and section 49(1) of the POO are overly broad and void for vagueness; and

(2)   whether those sections infringe the Applicant’s various rights under the Basic Law and/or Bill of Rights.

49.  I will return to the consequences of that, below.

E.  The Proper or Permissible Target of Challenge

50.  Ms Lee said that the statutory provision relied upon by PC Chow and SPC Ng on each occasion was section 54(2) of the PFO, rather than section 54(1) of the PFO (or section 49 of the POO).  She said that was simply a matter of fact.

51.  Ms Lee submitted that since the power invoked by the police on the three ‘stop and search’ incidents came from section 54(2) – the constitutionality of which the Applicant has expressly refused to challenge – the Applicant’s constitutional or systemic challenge should fall away.

52.  In the Applicant’s Reply, he said the police “intentionally mix up the two powers given in 54(1) and 54(2), and make some sort of alternative verdict, except it is not verdict here but it is about the powers authorised, prescribed by the laws to the police”.  Whilst the focus of the Applicant’s arguments seemed to remain on section 54(1) in the Reply and the Supplementary Rely (as in his Form 86), he sometimes referred to both sections 54(1) and 54(2) generally when criticising what he considered to be the unconstitutional practices of the police.

53.  I am unaware of any law or rules requiring the police to declare which particular statutory provision they are relying upon when they ‘stop and search’ a citizen.  There is no allegation – apart from argument on the facts – that the police did not have power to do so in the present case.  Nor is there any allegation that the Applicant was told by the police that the statutory basis relied upon was section 54(1), but now the police are changing it to section 54(2).  On the Applicant’s own account, he quickly complied with what was requested of him on both occasions in November 2022, and apparently also in January 2023.

54.  I accept that the power invoked by the police on all occasions was in fact section 54(2) of the PFO.  There can be no real suggestion that the Applicant was stopped and searched “for anything that may present a danger to the police officer” (the wording in section 54(1)), and instead he was clearly stopped and searched for “anything that is likely to be of value (whether by itself together with anything else) to the investigation of an offence that the person has committed, or is reasonably suspected of having committed or of being about to commit or of intending to commit” (the wording in section 54(2)).

55.  Since section 54(1) of the PFO (and section 49(1) of the POO, if it is still in the picture) were not engaged, there is simply no factual basis on which a systemic challenge could be raised to either statutory provisions.  The Court does not give advisory judgments.

56.  Thus, the proper or permissible targets of the intended challenge in this application for leave to apply for judicial review could only be:

(1)  Section 54(2) of the PFO;

(2)  the ‘stop and search’ conducted one week before 28 November 2022;

(3)  the ‘stop and search’ conducted on 28 November 2022; and

(4)  the ‘stop and search’ conducted on 9 January 2023.

57.  However, as already noted, the Applicant has in all versions of the Form 86 expressly refused to challenge the constitutionality of section 54(2) of the PFO.  The Applicant said he agrees that where a reasonably prudent officer is warrantless in circumstances believing that a crime is afoot, he may make a reasonable search for weapons and inspection of identity of the person believed by him to be armed and dangerous (though I would note, of course, that the powers granted by the section are not so narrow as to be confined only to such potential criminal offences).

58.  Indeed, part of the Applicant’s criticism of section 54(1) is made by comparing the provision to section 54(2), which he apparently considers to be constitutionally valid.  For example, he criticised section 54(1) for not requiring the suspicion to be connected with any crimes, unlike section 54(2): see above.

59.  I note that in the Applicant’s written materials, he also seems to suggest that there is a general practice of the police to selectively target young males for conducting ‘stop and search’ and he said such practice is discriminatory in contravention of Article 25 of the Basic Law.  However, I am not prepared to accept that an arguable case for the factual existence of such a general practice has been established in this case such that the alleged practice itself may be made a target of systemic challenge.

F.  Constitutional Challenge

60.  Grounds 1 to 5 (except perhaps part of Ground 3) seek to raise the systemic constitutional challenge on either section 54(1) of the PFO or section 49(1) of the POO.  However, as said, since they are not raised by the facts in this case, the point is academic and I see no reason why I should entertain them in this application.

61.  But, even if I were to entertain a constitutional challenge against section 54(2) (or section 54 as a whole), I see no reasonably arguable ground of review with any real prospect of success.

62.  The meaning of section 54 (including both subsections) was construed by Poon J (as the CJHC then was) in Wong Tze Yam v Commissioner of Police [2009] 5 HKLRD 836 (“Wong Tze Yam (No.1)”), at §§13-16.  For a policeman to invoke the power under section 54(1), his subjective judgment that a person is acting suspiciously must be based on objective facts – such as time, location, circumstances, the person’s conducts and demeanour, etc.  For section 54(2), the reasonableness of the policeman’s suspicion must also be judged by reference to similar objective facts.

63.  A similar constitutional challenge was raised in Wong Tze Yam v Commissioner of Police [2011] 3 HKLRD 369 (“Wong Tze Yam (No.2)”). There, the police carried out a licence-check and anti-crime operation in a disco in Tsim Sha Tsui.  The applicant and other patrons were not permitted to leave until the operation was finished, which took about 30 minutes.  The Court of Appeal ruled that the applicant was not subject to arrest, detention, or imprisonment” during that 30 minutes; his personal freedom was “restricted” but not “deprived”.  Thus, strictly speaking, only BL28 but not BOR5 was engaged.  In any event, the Court of Appeal found that section 54 of the PFO complies with the principle of legality because the provision clearly sets out the requirements that have to be met before the police can exercise their powers and the restriction imposed on individuals during that 30 minutes was proportionate to the end of crime prevention.  The applicant’s challenge that his rights under BL28 and BOR5 was violated was unsuccessful.

64.  Wong Tze Lam (No.2) was later applied in Lai Man Lok v Director of Home Affairs [2017] 3 HKLRD 338, where Chow J (as Chow JA then was) held that BL 28 did not confer on the applicant in that case a right to absolute freedom of the person and did not permit or allow a person to resist or obstruct the due execution of lawful duty despite public offices.

65.  I also accept Ms Lee’s submission that, even if BL 28 and BOR 5 were engaged, those provisions are not absolute in nature and can be subject to justifiable restriction.  In my view, both section 54(1) of the PFO and section 49(1) of the POO clearly satisfy the well-known four-step proportionality test.

66.  Further, the scope of the relevant powers is clearly delineated, and the exercise of the power must be objectively substantiated.  A measure of discretion is to be accorded to police officers, who are ordinarily well-placed (including as a result of their experience) to make an appropriate judgment on the relevant course to take in the particular circumstances.  Further, police officers must and do keep written records of the occasions when they perform a ‘stop and search’.

67.  These matters further identify why the powers are not unreasonable in law.  Some of these matters are also relevant to identify why the powers in the sections have sufficient legal certainty not to fall foul of the prescribed by law requirement.

68.  In view of Wong Tze Yam (No.2), I do not think the systemic constitutional challenge raised by the Applicant can be said to be reasonably arguable.  The Applicant recognized that.  He asked me to grant him leave to appeal directly to the Court of Final Appeal.  He heavily criticized Wong Tze Yam (No.1) and Wong Tze Yam (No.2), both in terms of factual and legal findings made by the courts.  I see no good reason why this case should be dealt with by a higher court.

69.  For Ground 6, Ms Lee submitted that it is well-established that BOR11(2)(g) is only engaged when a person is charged with a criminal offence, citing HKSAR v Lee Ming Tee (2001) 4 HKCFAR 133. I agree.  Indeed, this is also made abundantly clear in the text of BOR11. Ground 6 is not reasonably arguable.

G.  Conventional Challenge

70.  In so far as the Applicant has sought to raise a conventional judicial review challenge on legality – namely that on the facts the police had no powers to invoke either section 54(1) or section 54(2) – the Applicant said he had done nothing which would give rise to suspicion or a reasonable belief connecting to any criminal activities.  Adopting the interpretation of Poon J (as the CJHC then was) in Wong Tze Yam (No.1), the suggestion is there were no objective facts on which the police could rely upon to find the requisite suspicion or the reasonable belief to trigger the powers granted by section 54(1) or section 54(2).

71.  I have already referred to the factual disputes between the parties as to what happened in the ‘stop and search’ incidents.  However, I do not think it is necessary to resolve the factual disputes in order to dispose of this case.

72.  The starting point is that the burden imposed on the Applicant must have been transient on either party’s account.  On the police’s account, the interception (including the demand for proof of identity and the searches) took two minutes, one minute and five minutes respectively.  The Applicant said no searches happened on the first two occasions.  He was only asked to show his HKID card which he complied without taking issues.  The Applicant has sought to the conversation he had with PC Chow and SPC Ng in the process in a verbatim fashion in his Reply.  But his account is consistent with the police officers’ version that the encounters were very brief and the duration was measured in just a few minutes.

73.  Logically, whilst all actions the police decide to take under section 54(2) would require a reasonable suspicion of criminal activity supported by objective facts, the intrusiveness of the action has to be commensurate with objective facts supportive of the requisite belief.  A simple request to show an HKID card may not require much to justify the decision, in comparison to, say, a detention for making enquiry, or a search on the body.  I think it is fair to say that being asked to produce one’s HKID card which delays ones’ journey for a minute or two only produces minimal disturbance on the person, and threshold for the objective facts needed to justify the request would be a low one.

74.  I think the necessary threshold has been crossed for the two ‘stop and search’ instance which occurred in November 2022.

(1)  As to both occasions, the Applicant did not dispute the factual matters which are relied upon by PC Chow and SPC Ng in justifying their decisions to ask the former to produce his HKID card.

(2)  In the encounter which occurred one week before 28 November 2022, he did not dispute that he was not looking at PC Chow. Rather, he said he was simply focusing on his own phone while he walked.  He argued that not looking at a police officer should not be seen as a suspicious act.  But that was interpreted by PC Chow as the Applicant’s avoiding eye contact, which might be seen as a suspicious act.

(3)  For the interception on 28 November 2022, part of the factual matters relied upon by SPC Ng was that he saw that the Applicant was clenching his right hand.  The Applicant did not dispute that. What he said was that the police should not be too obsessed with his right hand.  In his Reply, he suggested that his hand appeared to be clenching because he was using that hand to hold his backpack.  The argument was that there was an innocent explanation for the Applicant to do what he did.  But SPC Ng said that as a suspicious act.

(4)  There is also no allegation that PC Chow or SPC Ng specifically targeted the Applicant as an individual.  There was no suggestion that either police officer knew the Applicant before the incident.

(5)  In the circumstance, I am satisfied that there were sufficient objective facts to justify the decision of PC Chow and SPC Ng to ask the Applicant to produce his HKID card under section 54(2).

75.  As to the third occasion, on 9 January 2023, I also think the necessary threshold has been crossed.  With respect to the Applicant, and even on his own version of events, it seems that his own actions on that occasion – perhaps prompted by the sense of frustration he felt from previous incidents – almost courted the police officers to become reasonably suspicious of him.

76.  Nothing is raised by reference to the individual ‘stop and search’ instances which identifies any reasonably arguable ground of review.

H.  Result

77.  The Applicant’s application for leave to apply for judicial review is, therefore, dismissed.

78.  In the exercise of my discretion as to costs, I make no order as to costs.