tim's experiment

We must all be grateful to former legislator Ted Hui, for publishing his correspondence with the police complaints system.

There is plenty of evidence at the macro level, of thousands of complaints received and a number you could count on the fingers of one hand accepted and acted on, usually in a painless way for the policeman concerned.

We also have the Independent Police Complaints Council’s report on the 2019 disturbances, which paints a clear picture of an organisation desperate to avoid finding that the police did anything wrong, and when that becomes unavoidable wrapping it up in the sort of woolly language which confuses more than it illuminates.

But we do not often see an individual complaint in detail, working its way through the system to the usual destination: rejection.

The incident of which Mr Hui complained occurred at a protest on January 1 last year. Unusually, this one had a Letter of No Objection from the Commissioner of Police. It was, however, cut short by police at the scene, apparently because someone had vandalised a branch of the Hongkong and Shanghai Bank.

Nobody seems to have noticed that this is a rather questionable procedure. The Public Order Ordinance says that people planning a demonstration need a Letter of No Objection from the Commissioner. It does not say that this can be revoked at any time by a junior officer. 

One would have thought, or hoped, that once the LONO was issued the protest would be entitled to protection as a legitimate exercise of free speech rights. The right to protest is enshrined in relevant ordinances and international instruments. It is not a favour bestowed by the police on condition of good behaviour by everyone present.

After all we did not know, and indeed still do not know, who vandalised the bank. It could have been protesters, it could have been some thrill-seekers with no particular political thoughts in mind, it could have been agents provocateur who opposed the protest. It could, we must reluctantly include, have been plain clothes policemen who wanted a bit of fun.

If protest organisers are at the mercy of any passing stranger who breaks the law then the right to protest is not being protected. In view of events since January 2020 this is perhaps not surprising.

Anyway Mr Hui’s complaint did not pursue this point at all. He complained that while he was standing on the pavement, in apparent accord with police instructions, a policeman tore his goggles off and pepper-sprayed him at close range, and did this twice.

He also complained that the officer concerned was not wearing an identification number, but was wearing a badge which is not part of the approved uniform – saying “Police bad-ass” apparently – in violation of police rules.

Immediately after the incident there was, as there usually is, a police spokesman to explain that nothing untoward had occurred. Mr Hui had refused to disperse and was therefor to be “dispersed” with pepper spray.

This was not a happy inspiration. Police are not supplied with non-lethal weapons so that they can “disperse“ anyone who is not being cooperative. The weapons are supplied for the protection of officers. If Mr Hui was obstructing police operations he should have been arrested and appropriately charged.

There is nothing in the law which authorises police officers to administer summary punishment for disobedience.

It also transpired that in the video – these days there is always video – Mr Hui was in fact on the pavement where he should have been.

This detail was quietly ignored in the subsequent investigation of Mr Hui’s complaint by the Complaints Against Police Office, which produced this verdict: “On January 1, 2020 at around 8pm on Hennessy Road… the police were conducting a crowd-dispersing operation and had given you and other demonstrators multiple verbal warnings and displayed warning flags,” the letter read. “At the time, the police were facing a large volume of violent demonstrators and had no other option but to use the minimum level of force – that is, to spray pepper spray at you and other demonstrators. Therefore, we classify this allegation as ‘without fault.’”

The letter added that this conclusion had been endorsed by the IPCC. Clearly they had not viewed all the video, in which there is a startling dearth of violent demonstrators and a surplus of police officers pepper-spraying anything which took their fancy, including the reporter doing the video, which can be seen here.

However people who have read the IPCC’s full length whitewash will not be surprised to find that in their view any place which the police wish to clear is a free fire zone. The report mentions in passing that a reporter was shot in the eye with a rubber bullet and its only comment on this incident is that she was “standing on a footbridge which the public had been asked to leave”.

Contemplating the work of the IPCC I am often reminded of Wittgenstein’s warning that when you measure a table with a ruler you are also measuring the ruler with the table. The IPCC’s work tells us very little about how policing is or should be conducted. It tells us a lot about the IPCC.

Still, perhaps Mr Hui’s spraying was part of an exciting scene and could perhaps pass as a forgivable result of law enforcement frustration.

What surprises is what became of the other complaints. The letter said that the officer wearing a “bad-ass” badge “did not affect the force’s image or its effectiveness”.

Really? Is it the Complaints Against Police Office’s view that the force image is now so bad that the spectacle of officers violating their own rules is shrugged off by observers as no more than they expect?

The objection to freelance badge selection has nothing to do with the possible effect of the words displayed on public opinion, or on the effectiveness of the force. The objection is that those authorised and empowered to enforce the rules should themselves obey them. If the police force thinks it is a worthwhile boost to morale for officers to adorn their uniforms with personal mottos then it should change the rules.

And the matter of not wearing identification numbers was a clear violation, not only of police rules but of the law. In November last year the High Court ruled that the failure to ensure that officers on duty wear a unique identification number was a violation of the Bill of Rights Ordinance.

The court also held that “The Government of the HKSAR is under a duty, pursuant to Article 3 of the Hong Kong Bill of Rights, to establish and maintain an independent mechanism capable of conducting effective investigation into complaints of suspected ill-treatment by police officers in contravention of Article 3 of the Hong Kong Bill of Rights, and that the existing complaints mechanism involving the Complaints Against the Police Office, with oversight by the Independent Police Complaints Council, is inadequate to discharge this obligation.”

And yet, it seems, nothing has changed and nothing is going to change. Isn’t the Rule of Law wonderful?