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You may also download the PDF version here: Protestor’s HandbookBildschirmfoto 2013-06-23 um 10.28.52 AM

KNOW YOUR RIGHTS

Basic Law Article 27

Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration; and the right and freedom to form and join trade unions, and to strike.

Hong Kong Bill of Rights Ordinance Article 17

The right of peaceful assembly shall be recognised. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. [cf. ICCPR Art. 21]

Why does it matter to you?

  1. The number of citizens who were arrested during protests surged 6 times from 57 people in 2011 to 440 in 2012; and
  2. In 2011/2012, Independent Police Complaints Council received 3,145 complaints against the Police.

Rights Table

Freedom of speech & demonstration

  • Basic Law Article 27
  • Hong Kong Bill of Rights Ordinance Article 17

Rights under stop, search and arrest

  • Basic Law Article 28, right not to subject to arbitrary or unlawful arrest, detention or imprisonment. Arbitrary or unlawful search of the body
  • Basic Law Article 35, right to seek confidential legal advice
  • Hong Kong Bill of Rights Ordinance Article 5, Liberty and Security of Person

Basic Law Article 28 The freedom of the person of Hong Kong residents shall be inviolable.

No Hong Kong resident shall be subjected to arbitrary or unlawful arrest, detention or imprisonment. Arbitrary or unlawful search of the body of any resident or deprivation or restriction of the freedom of the person shall be prohibited. Torture of any resident or arbitrary or unlawful deprivation of the life of any resident shall be prohibited.

When being stopped, searched and arrested in a public area

When being stopped and searched

According to the Police Force Ordinance section 54, the police officer may –

  1. stop you and request you to produce proof of identity;
  2. detain you for a reasonable time to find out if you have at any time been involved in any crime;
  3. conduct a search on you if he opines that you might possess anything that may cause danger to him, and detain you for a reasonable time to conduct such a search. (The Police Force Ordinance section 54)

Police officers should not conduct a search on members of the opposite sex. If there is no female officer, you may request going to the nearest police station to have the search conducted by a female officer.

When being arrested

Officer must inform you of the crime you are suspected to be involved in,

I, PCXXX, arrest you (your name) now. I have reason to believe that (place, time and date) you are suspected to be involved in (suspected crime e.g. assaulting police officer).

At this time, the officer must caution you,

You are not obliged to say anything unless you wish to do so but what you say may be put into writing and given in evidence.

This is not only a line we often hear on TV, but also a reminder of your right – Right of Silence

Seizure for Evidence 

The police officer may take possession of anything for evidence ONLY IF they have reasonable ground to suspect  that is of value to the investigation of any offence that you have committed or is reasonably suspected of having committed. 

It does not violate any laws to make video/ audio record of the police in the public area. 

Your Shield: Your Right of Silence

When an officer questions you, you have the right of silence. Under common law and the Bill of Rights Ordinance Article 11(2g), no one shall be compelled to testify against himself or confess guilt. This means you have the right to refuse to answer any questions asked by the officer.

Basic Law Article 35

Hong Kong residents shall have the right to confidential legal advice, access to the courts, choice of lawyers for timely protection of their lawful rights and interests or for representation in the courts, and to judicial remedies.

In the Police Station

The officer shall issue a “Notice to Persons under Investigation by, or Detained in the Custody of, the Police” to you. You must read it carefully and exercise the rights listed below if necessary,

  1. Seek legal advice. You may request a list of lawyers from the police;
  2. Inform your family and/or friends about your condition;
  3. Be released on bail;
  4. Request refreshments and/or medical attention if necessary.

After reading it, the officer will ask you to sign on the notice and give you a copy.

Custody Search Form

During your detention, the police may request to conduct a search on you. Before the search, the police officer will issue a “Custody Search Form” to inform you of the reasons for the search, the extent of the search and what they are searching for. The search must be conducted by a police officer of the same sex and only same-sex police officers may be present. The police officer must ensure your privacy during the search.

Should you have any complaints during the search, you should report it to the duty officer at the police station.

The Police Notebook

The officer may record the events and the things you said at the scene on his notebook and invite you to sign on it for accuracy.

  1. If there is anything inaccurate, you have the right to ask the officer to amend it.
  2. If you do not agree with anything in the notebook, you are NOT obliged to sign it.

During the interview

4. The officer will record what you say in writing. You may request the officer to write it down for you. The officer shall then ask you to write the following declaration,

I, (Your name), wish to make a statement. I want someone to write down what I say. I have been told that I need not say anything unless I wish to do so and that whatever I say may be given in evidence.”

5. During the interview, the officer will ask you questions,

  1. You have the right of silence.
  2. Please remember the differences between I do not want to answer.,  “I don’t know”, “I have not.” and “No.” — “No” and “I have not” mean a complete denial of the matter; “I don’t know” means you have no knowledge of the matter; “I do not want to answer” means you refuse to give any answers to the questions.
  3. When exercising your right of silence, it means you refuse to answer any questions.
  4. The officer must not at any time use any threats, violence or inducement on you.

Even if you choose not to answer any questions, the officer will still continue to ask. At the end, the officer will ask if you are going to refuse to answer all the questions that he is going to ask.

When the interview is finished, the officer will ask you to sign next to all the amendments, at the bottom of each page and at the end of the record of interview. The officer will also ask you to write down the following declarations and sign beside them to certify the accuracy of this record of interview:

I have read the above statement and I have been told that I can correct, alter or add anything I wish. This statement is true. I have made it of my own free will.” and

I have read the above statement, total of (X) pages. This statement contains the accurate and complete record of my answers.

a. If anything in this record of interview is inaccurate, you have the right to request the officer to amend it.

b. The officer will give you a copy of it.

After taking the record of interview (also known as “cautioned statement”), the police must take you to the magistracy for mention at the earliest possible time. The police may detain you for 48 hours.

You have the right to apply for a police bail.

  1. If the crime is not serious and the police have no further reason to detain you, they should give you bail. You may be asked to provide a cash or surety bail. If you have no cash, you may ask your friend to act as your surety for a surety bail.
  2. In considering if a bail should be granted, the police will consider the following factors:-
  • the likelihood that you might abscond;
  • the seriousness of the case and the possibility of a custodial sentence of the alleged offence;
  • the possibility of the witness being harassed and the exhibits being tampered with; and
  • the likelihood that you would commit any further offences.

If the police refuse bail, they must take you to the court for mention as soon as possible (usually the next working day after a charge is laid). You may apply for a bail in the mention in front of a magistrate. If the magistrate refuses to grant you a bail, you may still apply for a bail from a judge in the High Court.

Should the police detain you more than 48 hours without the permission of the court, you may contact your lawyer to apply for “Habeas Corpus” in the High Court.

Bill of Rights Ordinance Article 5: Liberty and security of person

(1) Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

(2) Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

(3) Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment.

(4) Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

(5) Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation. [cf. ICCPR Art. 9]

Home Search

The police must obtain a search warrant before entering your home to conduct a search, and they may only search the area and seize items specified under the warrant. You have the right to read the content of the search warrant. However, in emergency cases, police officers may use “reasonable force” to break into a place without a search warrant. In such cases, the police may only search the place to see if there are any people who may be arrested and related items.

Abuse & Complaints

If you have any complaints against the behaviour of the police at any time, including the use of threats, inducement and violence on you, you should remember the officer’s number, location, time and details to report to the duty officer at the police station. If necessary, you may request a medical examination at a hospital. You should also file a complaint to the Complaints Against Police Reporting Centre and seek independent legal advice as soon as possible. Should you be not satisfied with the result of the Complaints Against Police Reporting Centre, you may appeal its decision within 30 days.

Complaints Against Police Reporting Centre

Address: G/F, Annex Block, Caine House, No.3 Arsenal Street, Wan Chai, Hong Kong (adjacent to Central Police Station)

Complaint Hotline: 2866 7700

Fax: 2200 4460, 2200 4461, 2200 4462

Office Hours: Mon – Fri 7:30 am to 6:30 pm; Sat, Sun & Public Holiday closed

Homepage: http://www.police.gov.hk/ppp_en/11_useful_info/cap.html

Complaint E-form: https://secure1.info.gov.hk/police/eforms/complaint_against_police_en.htm

Law firms with specialty in criminal laws:

http://www.choosehklawyer.org/en/search_lfd_practice_areas_result.asp

Law firms in Hong Kong

http://www.hklawsoc.org.hk/pub_e/memberlawlist/mem_firm.asp?

The Duty Lawyer’s Tel-law Scheme: 2521 3333, 2522 8018

About HKCLU

Hong Kong Civil Liberties Union (“HKCLU”) is formed by a group of volunteers from the legal profession in Hong Kong. We pledge to defend and safeguard the civil rights and liberties of every individual. We aim at providing free legal assistance to the community and the fellow non- governmental and non profit-making organisations on the issues of civil rights, with the ultimate goal of achieving equality and diversity in Hong Kong.

Our Missions

HKCLU are dedicated to defending and promoting the individual rights and liberties. These rights include:

1. The right of due process

2. Equality before law

3. Privacy and freedom

4. Citizen’s responsibilities

www.facebook.com/HKCLU

www.twitter.com/HKCLU

www.hkclu.org

Disclaimer

The information in this handbook is for preliminary reference only and should NOT be considered as legal advice. HKCLU does not invite reliance upon, or accept responsibility for the information HKCLU provides. Any uses to which that information is put, or any actions taken in consequence of the use of HKCLU is the sole responsibility of the users. The contents of HKCLU are provided as an information guide only and the information is provided on an “as is” basis. HKCLU does not give any guarantees, undertakings or warranties concerning the accuracy, completeness or up-to-date nature of the information provided in this handbook. Users should confirm information from another source if it is of sufficient importance for them to do so. Any material obtained through the use of this handbook is done at the discretion and risk of users and users will be solely responsible for any damage to their computer system or loss of data that results from the downloading of any such material.

You should consult your own lawyer if you want to obtain further information or legal assistance concerning any specific legal matter.

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6 thoughts on “Protestors’ Rights Handbook

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