Late last month, Lam Cheuk-ting was arrested by the ICAC for allegedly disclosing the personal information of suspects being investigated by the anti-corruption agency in relation to the Yuen Long mob attack in July 2019. Lam told an ICAC arresting officer that the ICAC had become a tool for political persecution. He alleged that his arrest was a signal of the decline of the ICAC and Hong Kong. Abusive though Lam’s remarks were, the only remedy available to the hapless ICAC arresting officer was moral condemnation of Lam.
Because of Lam’s abusive remarks, the question as to whether Hong Kong should introduce a law to protect against the abusing or insulting of law enforcement officers has intruded into our consciousness again. Four years ago, Legislative Councilors Priscilla Leung, Junius Ho and Horace Cheung made a futile attempt to propose the Public Order (Amendment) Bill to criminalize verbal abuse of police officers. Mr Kacee Ting has published commentaries in support of this Legislative proposal also. Unfortunately, it attracted much criticism in 2017. At present, critics continue to argue that the proposed bill/law against insulting/abusing police officers (LAAP) would extend the power of the police. In particular, that freedom of speech would be severely undermined. Enforcing LAAP by police in public order events will also add fuel to the fire of anti-government activities.
In many common law jurisdictions, non-threatening verbal abuse of a police officer is not criminalized. But in Singapore, a common law jurisdiction, it is an offense under section 6 of the Protection from Harassment Act for those who use abusive language against a public servant, including police officers. Many Singaporeans regard this provision as necessary. France, a civil law jurisdiction, also has a law against insulting police.
First of all, I try to take the sting out of the freedom-of-expression argument put forward by critics. Abetted by widely held but dangerously misguided assumptions about the absolute nature of freedom of expression, critics have overlooked the reasonable and necessary restrictions imposed on freedom of expression in Hong Kong and other common law jurisdictions.
It is hardly convincing to suggest that the use of abusive language against police officers is an effective way to scrutinize the police force. Critics have a strong inclination to view the enactment of laws to free the police from improper public scrutiny in simple terms, as if every concession to the police is automatically and necessarily a setback for efforts to make the police force accountable. It is wrong
The legal guarantees for freedom of speech in Hong Kong are to be found in the Basic Law and in the Bill of Rights Ordinance (BORO). According to Article 16(3) of the BORO, freedom of expression is subject to certain restrictions, which are triggered where it is reasonably necessary to respect the rights or reputations of others or for the protection of national security. As shown in this reputation-protecting provision, law draftsmen might have given serious thought to the natural repugnance of the public at the prospect of a person who wrongfully uses freedom of speech as a pretext to insult others. Playing an indispensable role in maintaining law and order, our police force should be included in the protection list. Given the historical origins and defensive nature of the BORO, we may find great difficulty in proposing amendments to turn it into a sword of the Prosecution. A feasible alternative is to introduce LAAP to provide specific protection for police officers and other law enforcement officers.
As Lo Pui-yin has correctly pointed out, the domestication of the International Covenant on Civil and Political Rights (ICCPR) in the BORO are significant acts that affirm that after July 1, 1997, Hong Kong continues to use the methodology of international and comparative jurisprudence to determine whether a restriction to an internationally or constitutionally guaranteed fundamental right is justified, necessary or reasonable (Lo Pui-yin, The Judicial Construction of Hong Kong’s Basic Law (Hong Kong: Hong Kong University Press, 2014), p. 80). In accordance with international norms, the reputation-protecting provisions attached to freedom of expression are justified, necessary or reasonable in Hong Kong.
Special reference should be made to the offense of seditious intention in sections 9 and 10 of the Crimes Ordinance. Under section 10(1)(b) of the said ordinance, any person who utters any seditious words shall be guilty of an offense. It is obvious that national security is a reasonable and necessary ground for restricting freedom of expression. The sedition law provides a good precedent for us to consider whether we should introduce LAAP to deter abusers from using freedom of expression as an excuse to escape criminal liability.
Will LAAP make police powers unlimited? In the second half of 2019, the police force was caught up in violent confrontations with demonstrators and rioters in Hong Kong. Some are afraid that any fresh attempt to discuss LAAP will inspire more paranoia than before. Nevertheless, we should have the courage to rebut the alleged causal link between LAAP and the extension of police power. In a number of judicial review cases, the Court of Final Appeal ruled that exercise of police powers should be subject to the tests of “proportionality”, “necessity” and “reasonableness”. We should be fully confident that our Judiciary is capable of keeping a reasonable check on the power of the police.
It is hardly convincing to suggest that the use of abusive language against police officers is an effective way to scrutinize the police force. Critics have a strong inclination to view the enactment of laws to free the police from improper public scrutiny in simple terms, as if every concession to the police is automatically and necessarily a setback for efforts to make the police force accountable. It is wrong. Firstly, the use of abusive language against police is not a proper and effective way to make the police accountable. Secondly, it may elevate confrontation between abusers and police officers to a combustible level, especially in public order events. Thirdly, our police force has a set of strict disciplinary codes within the Police General Order. Besides, there is a two-tier police complaints mechanism (i.e., the Complaints Against Police Office and the Independent Police Complaints Council) to keep an eye on police misconduct.
It is time to reconsider introducing LAAP to make it easier for police officers to perform their duties without being unfairly placed at the receiving end of abusive remarks. Abusers should no longer be allowed to use freedom of expression as a pretext to verbally abuse police officers.
Junius Ho Kwan-yiu is a Legislative Council member and a solicitor. Kacee Ting Wong is a barrister and a part-time researcher of Shenzhen University Hong Kong and Macao Basic Law Research Center.
The views do not necessarily reflect those of China Daily.
