As public complaints have begun to emerge about the use of excessive force by some officers of the Hong Kong Police, it is quite in order, to recall the law on the crime of torture in Hong Kong. There is a Specific Ordinance titled, Crimes (Torture) Ordinance (Ordinance Number 427). It is ‘an Ordinance to create the offence of torture and to provide for related matters’. It was initially passed on 21st January 1993, and subsequently amended in 1997 and 2013. Initially, the law applied only to all the other disciplinary forces, except the police force. In 1997, the law was amended to include the Hong Kong police. This law brings the UN Torture Convention – the United Nations Convention against Torture and other, Cruel, Inhuman, or Degrading Treatment or Punishment, adopted by the General Assembly of the United Nations on 10th December 1994, – into the domestic law of Hong Kong.
Under Article 6 of the Ordinance ‘a person who commits the offence of torture is liable, on conviction, on indictment, to imprisonment for life.’
Under Article 4, of this Law, the Secretary for Justice’s consent is required for prosecution. Article 4 of the Basic Law of Hong Kong expressly stipulates that ‘the Hong Kong Special Administrative Region shall safeguard the rights and freedoms of the residents of the Hong Kong Special Administrative Region and of other persons in the region in accordance with the law.
Under the UN Convention against torture, ‘torture’ is defined as “…any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in, or incidental to lawful actions.”
The reputation of Hong Kong with regard to torture
Unlike most of the other countries in the Asian region, the Hong Kong Police service has enjoyed a reputation for policing by consent and policing without the use of torture and ill treatment. This reputation was achieved particularly after the Independent Commission Against Corruption (ICAC) came into existence. The achievement with regard to the control of bribery and corruption led also to a very high advancement of discipline within the civil service as a whole, including the Hong Kong police service.
This is no small achievement, as there are very serious concerns about the widespread use of torture by the police and other security forces in most of the countries in Asia, including in mainland China. This is due to the fact that the practical training for policing has been done through repressive systems of policing that have permitted the use of torture and ill treatment in criminal investigations and in controlling the public. However, the Hong Kong model of policing has been based on the tradition of the London Metropolitan police which revolutionized the ideas of policing that existed till it was established. This new model has had as its motto, “policing by consent.” Within this model, the investigative and the public control systems were developed in terms of the use of modern scientific methodologies and police officers were expected to act calmly even under the most provocative and trying circumstances.
In Hong Kong, there is a general fear of a possible transformation of social control into more coercive forms of control similar to the practices that exist in mainland China. Article 5 of the Basic Law of Hong Kong has specifically provided that the socialist system and the policies shall not be practiced in the Hong Kong Special Administrative Region.
Under these circumstances, the emergence of public reports about the use of torture against peaceful demonstrators should ‘ring bells of alarm’ and both the authorities and the public should take such complaints with utmost seriousness.
As the authorities have publicly promised investigations into the allegations of the excessive use of force by some police officers it should be noted that if the publicly revealed facts are correct then the investigations should include considerations relating to the crime of torture.
At this stage it would be useful both for the authorities and the people in Hong Kong to acquire adequate knowledge about the law relating to torture and its implications. In that regard, there is much to gain by the study of the extensive efforts made by the UN agencies towards the elimination of torture and in the development of a modern jurisprudence relating to eliminating torture and ill treatment.