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Following is a question by the Hon Dennis Kwok and a written reply by the Secretary for Security, Mr Lai Tung-kwok, in the Legislative Council today (May 27):
Question:
On October 15 last year during the occupation movement, seven police officers allegedly assaulted a protester and were interdicted from duty on the following day. On March 17 this year, the Commissioner of Police said that the Police had completed investigation of the case, and had referred it to the Department of Justice (DoJ) for consideration and was awaiting advice from DoJ. In this connection, will the Government inform this Council:
(1) whether the seven police officers are still interdicted from duty at present; of the remuneration arrangement during their interdiction, and the regulations under which such arrangement has been made; and
(2) of the anticipated time when DoJ will provide advice to the Police on whether to institute prosecution against those police officers?
Reply:
President,
Regarding the case mentioned in the question in which a man was allegedly assaulted by seven police officers on Lung Wo Road in Central on October 15, 2014, the Police are very concerned about the incident and have been handling the case seriously. The Police reiterate that no illegal acts by any police officers shall be tolerated. If any individual police officer is suspected of committing illegal acts, the Police will definitely conduct investigations in a fair and impartial manner.
The Complaints Against Police Office (CAPO) of the Hong Kong Police Force (HKPF) received a complaint from the man on the day the incident took place (i.e. October 15, 2014). A dedicated special investigation team was immediately assigned by the CAPO to conduct a thorough investigation into the incident. The police officers who conducted the arrest of the complainant at the time in question have been removed from frontline operational duties by the Police on the afternoon of the day of the incident. Following investigation, the Police confirmed that there were seven police officers involved in the handling of the complainant at the time in question. On the following day (i.e. October 16, 2014), the Police interdicted those seven police officers in the public interest. Upon further investigation and seeking legal advice, the Police arrested the seven interdicted police officers on November 26, 2014 for alleged assault occasioning actual bodily harm.
At present, the Police have already submitted the investigation report to the Department of Justice (DoJ) and are now awaiting legal advice. The Police will continue to follow up the case and report to the Independent Police Complaints Council in relation to the complaint involving this case.
The Government's reply to the question raised by the Hon Dennis Kwok is as follows:
(1) The aforementioned seven police officers involved in the case (including two inspectorate officers and five junior police officers) have been interdicted from October 16, 2014 up to now.
The HKPF has been handling the interdiction of those seven police officers as well as their salary arrangements during interdiction in accordance with the Police Force Ordinance (Cap. 232). Section 17 of the Police Force Ordinance sets out the arrangements in these two aspects for police officers in the rank of Chief Inspector of Police or below. Relevant legal provisions are excerpted as follows:
"(1) If the Commissioner (of Police) considers that the public interest requires that a police officer other than a gazetted police officer should cease to exercise the powers and functions of his office forthwith, he may interdict the police officer from the exercise of such powers and functions where -
(a) disciplinary or criminal proceedings are being instituted or are about to be instituted against such officer; or
(b) such officer is the subject of an inquiry into his conduct in connection with his duties as a police officer or the subject of an investigation into any report, allegation or suspicion that he has committed an offence.
(2) A police officer who has been interdicted under -
(a) subsection (1)(a), shall be allowed to receive such proportion of his pay, not being less than one-half, as the Commissioner shall in every case direct, until such time as he may be convicted of an offence whereupon the matter shall be determined under section 37(4);
(b) subsection (1)(b), shall not on that account receive less than his full pay."
In accordance with section 37(4) of the Police Force Ordinance, no pay or allowance shall be payable to any police officer with effect from the date of the finding by a court in criminal proceedings that a charge against such officer in respect of a criminal offence has been proved against him unless the approval of the Commissioner of such payment be given.
(2) The independent prosecutorial power is guaranteed by Article 63 of the Basic Law which says that the DoJ shall control criminal prosecutions free from any interference. According to the Prosecution Code, the DoJ should bring a prosecution only if there is a reasonable prospect of conviction. Prosecutors in the DoJ have been strictly adhering to the prosecution policy and jealously guarding the principle of prosecutorial independence as guaranteed by the Basic Law.
The DoJ will make all prosecution decisions independently, fairly and in strict accordance with the law and the Prosecution Code. The DoJ will handle any suspects in a fair and just manner, regardless of their background, position or status. And where actually feasible, the DoJ will also seek to provide detailed and comprehensively considered legal advice to law enforcement agencies (including the Police) as quickly as possible. However, the actual time that it takes to provide legal advice on each case would depend on a whole host of factors, including mainly the nature and complexity of the case. And amongst the cases submitted to the DoJ for legal advice, in the event that directions were necessary for the relevant law enforcement agency to make further enquiries, they would be given before the legal advice could be finalised and prosecutions (if considered appropriate) be taken forward. Although prosecutors have the duty to decide as soon as possible after an incident whether to take prosecution action, they also have the responsibility to conduct comprehensive, detailed and in-depth research and analysis into the details of the case, so as to ensure that prosecution will be pursued only where there is sufficient evidence.
In respect of the case mentioned in the question, the DoJ and the Police have all along maintained communication. The DoJ is examining the information provided by the Police and related legal issues and is concurrently seeking legal advice from an independent senior counsel, with a view to providing legal advice to the Police as soon as possible, including whether further enquiries would be required, whether the complainant or other relevant individuals should be requested to provide further assistance, or whether any person should be prosecuted. It is not appropriate for the HKSAR Government to make further comments on the case at this stage.
Ends/Wednesday, May 27, 2015
Issued at HKT 15:26
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