By virtue of the Independent Police Complaints Council Ordinance (Cap. 604), the IPCC observes, monitors and reviews the handling of reportable complaints by the Commissioner of Police. It can also make recommendations for their handling or investigation. As part of this mandate, it clearly has a responsibility to ensure just outcomes, not only for those who make legitimate complaints, but also for police officers who are unfairly victimized.
In the 1980s, when I was the legal adviser to the Complaints Against Police Office (CAPO), many complaints against police officers were received from suspects who were awaiting trial. These were known as “tactical complaints”, and they were not, for the most part, taken any further until the related trial had concluded. The complainants invariably alleged that the police officers who interviewed them after arrest had maltreated them, which was why they made the admissions in question, or else that the police had fabricated the evidence against them.
The complainants were usually encouraged by their lawyers to lodge early complaints with CAPO, because they realized that, if they mentioned them for the first time at trial, the prosecutor would try to catch them out. His question would be to the effect that “if your allegations are true, why did you not report them to CAPO early on?” This would then be followed by the conclusion that “your failure to report to CAPO shows you have made these allegations up in order to save your skin”. Once the trial was over, the complainant, if convicted, invariably abandoned his complaint to CAPO, as the court had disbelieved his allegations. If, however, he was acquitted, he usually had no further interest in pursuing the complaint, as he wanted to move on.
If, therefore, the Department of Justice fully utilizes the weapons in its armory, it can provide honest police officers with the protections they need. Within the protest movement, there are undoubtedly ruthless people who will stop at nothing to weaken the police force, furious at its success in defending Hong Kong from their depredations. Although people with legitimate grievances must certainly not be deterred from raising them with CAPO, those with ulterior motives must be deterred from using the system to try to incriminate the innocent
Although, in theory, people who lodged tactical complaints with CAPO could, after they had been convicted, have also been prosecuted for lodging a false complaint, this was rare. The system itself exerted pressure on people facing trial to complain, and, once they had been convicted, it would often have seemed unfair to prosecute them again for simply having told CAPO in advance of the defence they planned to run at trial. This was so even if, as things turned out, the allegations proved to be untrue.
That situation, however, is far removed from today’s, where the complaints are, for the most part, of a very different type, often designed to undermine the police force as a whole. The complaints received by CAPO these days fall into two distinct categories. If a complaint is reportable, it essentially means it relates to the conduct of a police officer while on duty, and is made in good faith, while not being vexatious or frivolous, and it will then be scrutinized by the IPCC. Alternatively, a complaint which is notifiable is one which is not reportable, as where it is made anonymously or does not directly concern police conduct.
On June 17, it was revealed that 8,120 people had lodged complaints with CAPO over the handling by the police force of protest activity since June 9 last year. These were categorized into 1,833 cases, as some complaints involved the same events. It was also disclosed that about half of the people had used the same online template to complain about 12 events, and they were not themselves involved in the incidents. They were lodging complaints based on media reports and what they had seen online, and some of them were even unable to provide basic particulars of the matters that concerned them, including date, time and location. Indeed, seven people even made 603 notifiable complaints between them, which seems extraordinary, and must have set the alarm bells ringing.
It appears, therefore, that systematic attempts are being made to use CAPO to distract the police force at a time when it needs to remain fully focused. These complaints, which have political overtones, are far removed from the tactical complaints which once occupied so much of CAPO’s time. They seem to be part of a conspiracy to damage the professional careers of young men and women who, in many cases, have put their lives on the line for Hong Kong. Either that, or else they represent a cynical attempt to weaken their morale by tying them up in time-consuming investigations. The complaints procedure, of course, readily lends itself to this type of abuse, which is why those minded to do this must be deterred wherever possible.
Between 2016 and 2019, CAPO fully investigated 2,576 cases, of which 162 were categorized as “false”. Many other non-reportable cases would also have been in that category. It appears, moreover, that, although many cases have yet to be fully investigated, the figures for falsity for 2019 to 2020 will be far higher. If actions are to have consequences, therefore, prosecutions of those who have filed false complaints against frontline police officers must follow, as night follows day, with the only question being which charge is the most appropriate.
At its disposal, the Department of Justice has the Police Force Ordinance (section 64, Cap. 232), which enables it to prosecute those who try to mislead CAPO. It provides that any person who knowingly misleads a police officer by giving false information, or by making false statements or accusations, is liable to six months’ imprisonment, and a fine of HK$1,000. This might be a suitable charge for a minor offence, as where an allegation of a non-criminal nature is leveled at a police officer, such as verbal abuse. It is, however, woefully inadequate for the situation where a complainant sets out to destroy a police officer, by providing false information to CAPO which subjects him or her to the risk of criminal prosecution.
If a false claim is made to CAPO that a police officer has committed a crime, the appropriate offence will be attempting (or conspiring) to pervert the course of public justice, contrary to the common law. There have, for example, been 190 allegations of assault, which could result in police officers being arrested, and, once a complaint is found to be false, a prosecution will be viable. This particular offence is designed to criminalize acts or conduct which may cause a miscarriage of justice, or which might result in the ends of justice being defeated. In 2008, the maximum sentence for perverting the course of justice was raised, following complaints by the judiciary about its inadequacy, from imprisonment for seven years to imprisonment for any term, plus a fine of any amount, and substantial sentences of imprisonment are now the norm.
If, therefore, the Department of Justice fully utilizes the weapons in its armory, it can provide honest police officers with the protections they need. Within the protest movement, there are undoubtedly ruthless people who will stop at nothing to weaken the police force, furious at its success in defending Hong Kong from their depredations. Although people with legitimate grievances must certainly not be deterred from raising them with CAPO, those with ulterior motives must be deterred from using the system to try to incriminate the innocent.
The author is a senior counsel, law professor and criminal justice analyst, and was previously the director of public prosecutions of Hong Kong.
The views do not necessarily reflect those of China Daily.
