Police officers involved in riot control operations during Occupy Central could face legal action if the use of pepper spray was to punish protesters, says academic
STEPHENSON CHOW POK YIN
PUBLISHED : Friday, 03 October, 2014, 11:00am
UPDATED : Friday, 03 October, 2014, 11:12am
Police use pepper spray against protesters outside government headquarters in Hong Kong on Sunday. Photo: Vincent Yu
I was shown this disturbing video footage yesterday (below), which has apparently been circulating on social media for quite some time.
The clip features a man, approximately in his sixties, standing between protesters with their umbrellas and police in their anti-riot gear, separated by metal fencing. Bidding to ease the tension (after an unsuccessful attempt by the crowd to charge the police), the man shouts to the crowd at the top of his voice: “Do not charge, do not get irritated, it is of no use!” All of a sudden, a police inspector (in a white shirt) taps the man on the shoulder who then instinctively turns around. Without mercy, the officer applies pepper spray right into the man’s face. My gut reaction was: “This has got to be criminal!”
http://m.youtube.com/watch?v=muWhN4mcsv0
In fact, the legal consequences for the officer could be grave. The use of pepper spray is regulated under Hong Kong law by the Firearms and Ammunitions Ordinance, Cap 238 (FAO), which provides that anyone who uses any weapon for the discharge of noxious liquid (including aerosol containing such liquid) in a manner likely to injure another is potentially criminally liable to imprisonment for up to seven years (sections 2(e) and 22 of the FAO).
Some of us (police included) may think that police internal guidelines empower them to make a judgment call as to the degree of force used. Others may believe that police officers are only liable for criminal misconduct if they are not on duty. In both situations, they are thought to be somewhat “immune” to criminal liability. But both beliefs are quite mistaken.
Firstly, an internal guideline is, after all, a guideline. It does not override the law. Furthermore, no law in Hong Kong empowers a police officer to conduct punitive measures on any individual using force (even if he is a criminal suspect), which is apparently what the officer was trying to do in the video clip as he applied the pepper spray – to punish an individual rather than to prevent a crime. Any force used by a police officer with such aim would logically have to be deemed unnecessary and unlawful.
The second mistake is even more obvious. Law enforcement officers are certainly not above the law and police officers on duty could very well be prosecuted. But here is the tricky part. What if the Police Force refuses to investigate or purposefully does a poor job of investigating the alleged crime? In such a situation, can the alleged officer still be prosecuted given that the Department of Justice would not have sufficient evidence to do so?
Police target protesters with pepper spray on Saturday. Photo: May Tse
Under Hong Kong's legal system, any person has the right to commence a criminal prosecution in the public interest (a procedure known as “private prosecution”). Section 14 of the Magistrates Ordinance, Cap.227 expressly qualifies any complainant or informant to prosecute in person or by legal counsel, although the Secretary for Justice may at any stage of the proceedings intervene or even discontinue the proceedings. Furthermore, private prosecutions are extremely rare and exceptionally difficult to win, owing to stringent evidentiary rules that apply in court and the fact that ordinary citizens do not enjoy the vast investigative powers that are afforded by law to the police. But they are entirely possible. And given the popularity of smart phones and cameras, gathering evidence may not be as difficult a task as it was in the past.
What worries me is that some police officers may hold the above mistaken beliefs or may even be given express or implicit assurances from their higher-ups regarding possible exemptions from criminal liability. They may also be (mis)led into believing that excessive uses of force are lawful (e.g. when prior actions are endorsed by their superiors). As a result, they may carry out measures that go beyond their legal authority and, without realising, expose themselves to greater risks of serious legal consequences. This prompts the question: are our police officers receiving proper legal advice as to their criminal liability prior to operations?
The opinions are the author's own. Stephenson Chow Pok Yin, (Ph.D in Law), is a Post-Doctoral Fellow at City University of Hong Kong
http://m.scmp.com/comment/insight-opinion/article/1608736/could-police-face-prosecution-criminal-acts-committed-during
