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Riot police not wearing any kind of identification last year
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A year after the dramatic siege at Polytechnic University that saw protesters rappel down to waiting motorcycles and cars, and a police officer shot in the leg by an arrow, today there was vindication for critics of the police in how they treated protesters during the months' long anti-government protests.
The High Court ruled that the system in dealing with complaints against the police is not adequate, and that officers' failure to display their identification numbers during last year's protests contravened the city's Bill of Rights.
The latter was a constant complaint especially during the latter half of the protests, when the public could not file complaints against the police because there was no identification number on their uniform, or there was only a vague indication of a unit.
Court of First Instance Judge Anderson Chow Ka-ming sided with the Hong Kong Journalists Association in its legal challenge against the government and the force. The court also ruled in favour of two other judicial review applications filed by four residents who took issue with the officers' failure to display their identification.
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Complaints could not be filed without ID numbers
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Chow found the Bill of Rights imposed a "positive obligation" on the government to maintain an independent mechanism capable of conducting "effective investigation" into complaints of suspected ill-treatment by police officers.
"The existing complaints mechanism involving the Complaints Against the Police Office, with oversight from the Independent Police Complaints Council, is inadequate to discharge this obligation," he said, adding the CAPO was operated under the police, and the IPCC lacked the necessary investigative powers.
Meanwhile Article 3 of the Bill of Rights states no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
Chow wrote: "The rights protected by [Article 3 of the Bill of Rights] are absolute and non-derogable. This means that even in times of public emergencies, however serious, the rights under [Article 3] must still be respected by the government and protected by the courts."
This ruling demonstrates how the judiciary has a different view of the existing system compared to the government, as Chief Executive Carrie Lam Cheng Yuet-ngor has claimed it was capable of handling complaints due to the protests.
However, she ignored the advice of former chief justice Andrew Li Kwok-nang in setting up an independent inquiry looking into the protests, and instead insisted the IPCC's report would suffice, though it lacked the teeth to conduct a truly independent inquiry because it did not have the power to subpoena witnesses.
Chow also ruled the police commissioner's failure to maintain and effective system ensuring uniformed police officers deployed during the unrest displayed their identification numbers violated the Bill of Rights.
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Lam felt the IPCC's report would be sufficient
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As a result, the complaint system could not work because victims could not identify the officers in the cases of possible ill-treatment.
"An obvious measure that could and should be taken would be to require police officers each to wear and prominently display a unique identification number or mark when carrying out non-covert duties," he said.
Numerous court cases were filed last year by those who accused the police of ill-treatment, but could not file a complaint because they could not identify the officers involved.
The police force, Department of Justice, Security Bureau and the Chief Executive's Office are studying the judgment.
In court, lawyers for the government and police maintained both had complied with the law, and in an earlier written affirmation, Chief Inspector Kenneth Lee Yuet-lam told the court that riot officers were not required to display their numbers because of "obvious personal safety concerns".
He was referring to concerns of doxxing, where a person's personal information is posted online and may lead to malicious intent.
While Chow understood the force's concerns about doxxing, he wrote: "However... such concern cannot of itself override the duty to maintain an adequate system to investigate suspected cases of breach of [the Bill of Rights]."
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Yeung says the police must respond to the ruling
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The Hong Kong Journalists Association chairman Chris Yeung Kin-hang welcomed the court's ruling and called for an immediate response from the police.
"We hope the force will take immediate actions to rectify the situation, as revealing identities should be a basic requirement [for officers] so that the public, including journalists, can lodge a complaint against certain officers if they are unfairly treated," he said.
"I think the ruling gives a very clear instruction on what police should do, but honestly, it is beyond our control whether the force will take immediate action, as it is possible they will lodge an appeal."
There is a strong possibility the force will appeal... but the ruling based on the Bill of Rights is very compelling. Protesters will cherish this legal victory as vindication that their right were violated.
It is a nudge in the right direction for civil society and rule of law, but how long will it last?