Policing in Hong Kong 1409410609, 9781409410607

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policing in hong kong

INTERNATIONAL AND COMPARATIVE CRIMINAL JUSTICE Series Editors: Mark Findlay, Institute of Criminology, University of Sydney, Australia Ralph Henham, Nottingham Law School, Nottingham Trent University, UK This series explores the new and rapidly developing field of international and comparative criminal justice and engages with its most important emerging themes and debates. It focuses on three interrelated aspects of scholarship which go to the root of understanding the nature and significance of international criminal justice in the broader context of globalization and global governance. These include: the theoretical and methodological problems posed by the development of international and comparative criminal justice; comparative contextual analysis; the reciprocal relationship between comparative and international criminal justice and contributions which endeavor to build understandings of global justice on foundations of comparative contextual analysis. Other titles in the series: Criminal Law Reform and Transitional Justice Human Rights Perspectives for Sudan Edited by Lutz Oette ISBN 978 1 4094 3100 8 Codification, Macaulay and the Indian Penal Code The Legacies and Modern Challenges of Criminal Law Reform Edited by Wing-Cheong Chan, Barry Wright and Stanley Yeo ISBN 978 1 4094 2442 0 Exploring the Boundaries of International Criminal Justice Edited by Ralph Henham and Mark Findlay ISBN 978 0 7546 4979 3 The International Criminal Court and National Courts A Contentious Relationship Nidal Nabil Jurdi ISBN 978 1 4094 0916 8

Policing in Hong Kong

Kam C. Wong Xavier University, Cincinnati, USA

First published 2012 by Ashgate Publishing Published 2016 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN 711 Third Avenue, New York, NY 10017, USA Routledge is an imprint of the Taylor & Francis Group, an informa business Copyright © Kam C. Wong 2012 Kam C. Wong has asserted his right under the Copyright, Designs and Patents Act, 1988, to be identified as the author of this work. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data Wong, Kam C. Policing in Hong Kong. -- (International and comparative criminal justice) 1. Police--China--Hong Kong--History--20th century. 2. Police--China--Hong Kong--History--21st century. I. Title II. Series 363.2’095121-dc23 Library of Congress Cataloging-in-Publication Data Wong, Kam C. Policing in Hong Kong / by Kam C. Wong. p. cm. -- (International and comparative justice) Includes bibliographical references and index. ISBN 978-1-4094-1060-7 (hardback) 1. Police--China--Hong Kong. 2. Police regulations--China--Hong Kong. 3. Computer crimes--China--Hong Kong. 4. Public safety--China--Hong Kong. 5. Police--China. 6. Police--Hong Kong. I. Title. KNQ9357.W66 2011 363.2095125--dc23 ISBN: 9781409410607 (hbk) ISBN: 9781315601106 (ebk)

2012000447

For Oliver, Kyra, Rose, Leo, and Alec Wong

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Contents List of Tables   ix Foreword by Peter Manning   xi Prefacexv 1

Policing Hong Kong: The Early Years

2

Policing Hong Kong Police

51

3

Controlling Police Use of Force

89

4

Beat Patrol Deployment in Hong Kong

139

5

Policing Computer Crime in Hong Kong

165

6

Assessing Police Investigative Powers: The Case of Interception of Communications Surveillance Ordinance 219

7

One Country, Two Systems of Policing: People’s Republic of China Gong An vs. Hong Kong Police Reform 281

Index  

1

351

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List of Tables Various Ways of Invoking Police Powers   xv Total Allegations and Substantiation Rates: 2007–2010   56 Nature of Allegations Endorsed by IPCC and Substantiation Rates: 2007–2010   57 2.3 Police Action Taken Against Defaulting Officers by HKP: 2006– 2010 (1st Quarter)   62 2.4 Citizens’ Complaints Against Hong Kong Police: 1996–2004   81 2.5 Origin of Complaints Received: 1994–2004   82 2.6 Percentage of Substantiated Rate of Allegations to Total Allegations of the Same Nature as per CAPO Reports Examined by the IPCC: 1994–2004   83 2.7 Number of Cases Resolved by Informal Resolution Endorsed by the IPCC: 1994–2004   84 3.1 Use of Force Continuum – Hong Kong Police   92 4.1 Distribution of Assault Incidents by Unit Assignment (One-man, Two-man Cars)   146 4.2 Policy Implications of HKP’s Remedial Measures on Targeted Audience: Internal and External   149 4.3 Law Enforcement Officers Killed: By Type of Activity: 1950–1994  153 4.4 Law Enforcement Officers Killed: By Circumstances at Scene of Incident: 1986–1995   157 5.1 Reported Computer-related Crimes: 1996–1999   171 5.2 Reported Computer-related Crimes: 1996–2004   172 5.3 Public Complaints Received by Newspapers Registration Section (NRS) Regarding Pornographic Material on the Internet: July 2001–December 2002   173 5.4 Total Reported Hacking Cases: 1996–2004   173 5.5 Financial Losses Due to Computer Crime in Hong Kong: 2000–2003   174 5.6 Financial Losses Due to Computer Crime in Hong Kong: 2000–2003 174 5.7 Number of PCs Affected Due to Computer Crimes in Hong Kong: 2000–2003   175 5.8 Privacy Concerns Over Purchasing on the Internet   176 5.9 Invasion of Privacy at Work   177 5.10 Practice of Purchasing (and Using) Pirated or Counterfeit Products (percent)   179

P.1 2.1 2.2

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5.11 Major Reasons for Infringing IP Rights (percent)—Open-ended, Multiple Responses   180 5.12 “It is Immoral for a Consumer to Buy Counterfeit or Pirated Goods Knowing that it is an Infringement” (percent)   181 5.13 Knowledge of IP Rights—Open-ended (percent)   181 5.14 Critical Issues for IS Management—an International Comparison  183 5.15 Estimated Trade Losses Due to Piracy and Levels of Piracy in Hong Kong: 1995–1998 (millions of US dollars)   197 5.16 Telecommunication to Off-shore Gambling Site (Country X) and Other Countries: 1993, 1994, 2000   201 5.17 Betting Duty Derived from Mark Six Lottery and Horse Racing   202 5.18 Selected Successful Prosecutions of Computer Crimes in Hong Kong: 2001–2002   209 6.1 Values and Behavior of Officers   230 7.1 Wave III Workshop Schedule   291 7.2 Sample Profile   307 7.3 Overall Satisfaction with Police–Public Relations (percent)   308 7.4 Ranking Police Performance by Function: Crime Fighting, Crime Prevention, and Social Service   309 7.5 “Jiaodian Fangtan” Public Opinion Models in TV Programming: April 1, 1994–December 31, 1998   319 7.6 Public Satisfaction with Hong Kong Police Performance   323 7.7 Public Evaluation of Police Performance   324 7.8 Satisfaction with the Performance of the Hong Kong Police Force (per poll)   326 7.9 Satisfaction Rate with Legco vs. HKP vs. PLA   328 7.10 Traditional Policing vs. Professional Policing   333

Foreword Peter Manning

The transition of Hong Kong from an English colony to a special administrative region within China began as the English dramatically withdrew, with bands, flags and soldiers, in 1997. This ceremony and ensuing developments remains one of the most remarkable political events of the past century. The re-shaping of Hong Kong, governance, culture and people, is a natural experiment in reform, and is perhaps a window onto the on-going emergence of China as a great world power. Fortunately for scholars, K.C. Wong’s framework and extensive research on Chinese policing, perhaps unique in the scholarly world, are further developed in Policing Hong Kong. He writes that his aim in this book is to “Specifically, [show] how the British colonial government, given its ideological inclination, commercial interests and imperialistic goals, came to gain control over an alien (nationalistic) and alienated (anti-foreign) population.” The book addresses “… how the British as well as the Chinese, mainland and Hong Kong, imagine order, construct crime and practice control.” This imaginative book succeeds as a narrative for police scholars as well as for those interested in governmental reform and transition. While focused on the legal and organizational reforms in the police post-1997, the book opens with a vivid, informative and compact history of Hong Kong and the early years of the colony under British rule. This mini-panorama provides the background against which Wong discusses the reforms in the Hong Kong Police in the last 15 years. Chapter two details the authority of the Hong Kong police, and is followed by engaging chapters on recent issues: controlling the use of force; beat deployment; new laws and approaches to computer crime; changes in the investigative powers of the police; and a concluding chapter that discusses the central idea of one country, two systems of policing. Wong shows the tensions and contradictions of reform of a force that is slowly shedding its role as a colonial police system and being transformed into a more democratic assemblage. The transformation of policing practices, shaped by colonialism, is clearly a work in progress. A variety of interconnected themes emerge in this very readable and scholarly book. Wong combines in a parsimonious and engaging fashion his knowledge of the indigenous culture and language, experience in the service of the Hong Kong Police and empirical materials. In this sense, the book is a selective social history with policing as a center piece. Realization of what he terms an “indigenous perspective” permits a closer examination of the abiding question in the study of policing, colonial policing and post-colonial policing: how does

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the indigenous culture shape the pattern of policing and citizen compliance that emerges? Wong leaps rather gracefully from Hong Kong in the late nineteenth century to a consideration of modern late twentieth-century reforms, omitting the massive trauma of the World War II Japanese occupation and the post-war stresses and calamities of the then colony. Hong Kong had potential because of its strategic location, but was of little interest to the Chinese until the British invasion of 1841. Strangely enough, given its current position as a center of world finance, Hong Kong was in the nineteenth century a marginal island enclave far from the centers of power in Peking, an area which welcomed criminals, drug dealers, prostitutes and others afloat on the edges of the Chinese Empire. In the beginning it was neither a desirable Chinese possession nor much more than a port for refurbishing and resupplying British ships. The British approach to the development of Hong Kong was ad hoc, mishandled, unplanned, reactive to events, and it was realized in a series of expedient acts that became the basis of a political obligation. Wong charts this in a fascinating and engaging fashion-outlining the events from the seizure of the Island and surrounding territory by British Marines in January 1841, to the Treaty of Nanking in 1842. This treaty, reproduced in the text of this book, was a bureaucratic maze, full of loopholes, ambiguities, vague assertions and with enough flexibility to encompass all manner of compromise. Wong explains the cynical causes of the repugnant and expedient introduction by the British of the opium trade and the resulting “Opium Wars,” and reveals the strength of Chinese resistance to these cynical efforts to “balance trade” between China and the British Empire. Although it is now said that Hong Kong is one society with two sets of laws, and a special administrative region within China, it has always been guided by a complex set of rules, one applied to Chinese and one to Europeans; a parallel and dual set of courts; and compliance based on an abiding and nuanced combination of citizens’ respect for social hierarchy, Confucian ideas-as-poetry and situational exigency. These loosely connected aspects of the system resulted in two forms of justice, multi-faceted enforcement and differentially applied violence. In effect, while the police were in fact a well-armed Gendarmerie with focus on security rather than a police force, the flexible, complicated, quasi-philosophic attitude of the Chinese made it possible for the British and their designated agents to “police” a diverse, sprawling, growing Chinese population and small protected European elite. Something like a collaborative dependency emerged between the residents of Hong Kong, the English, and residents of the Chinese Mainland. An invisible web of compliance and a rich and semi-visible under life animated the island and its surrounding territory from the beginning. Somehow, radical English Protestant individualism was fitted with the holistic, collectivistic, communal perspective of the Chinese to create a syncretic and workable compromise. Wong states his case concerning the strengths and weaknesses of the reform efforts well and documents them. He articulates one version of how a colonial police based on an indigenous culture is shaped and evolves, and in due course,

Foreword

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how reforms fit or not with a laminated or amalgamated system of social control. Clearly, from a colonial system of governance1 a new form of policing is emerging. The on-going reforms described here suggest that a new dialectic is being played out, the result of the reduced social distance between the Mainland and Hong Kong, the appearance in Hong Kong of the government of China (a huge looming headquarters of the PRC government sits beside the harbor), changes in the police in the PRC2 that may contribute to the new shape of policing in East Asia (Taiwan, Singapore, Malaya, Macau and elsewhere). Consider now the case of reform of the Hong Kong police as presented here. It is a revealing window onto what is now called post-colonial policing.3 In the several former empires now collapsed, the Portuguese, English, Spanish, Dutch and the French, policing has been re-invented, resting nevertheless uneasily on the indigenous cultures, the emergent third culture growing from cultural contact between the resident ethnic groups, and the authority carved out by the former colonial administration. This process produces a deep dialectic between the forces at work and inevitably features periodic crises, turning points, reflection and further reform efforts. It must be noted that the tacit acceptance of the Peel model of visible, reactive, public, and crime-disorder based policing as the model of policing has not served the scholarly community well. With some exceptions, scholars have not explored the pieces of the police puzzle that include the role of colonial policing; the contrasts between Gendarmerie and police forces and tensions that arise as a result of combining security policing and crime-oriented policing in a single centralized force. These tensions are abroad now in Latin America, Ireland and Northern Ireland as well as in Africa. The frontier facing scholars of the police and of policing is challenging, both bright and wide. It requires answers to key questions including how to gather comparative, cross-cultural and historical materials; to refine generalizable concepts; to develop a body of empirical data and finally, to advance testable propositions about policing. A comparative, analytic study of policing, of which Wong’s work is a prime example, would examine originating events and processes; the natural history of the organization as an institution in the colonial context; the interaction between formal and informal modes of control; the grounding social philosophies of the indigenous peoples and the conquistadores; the cultural interpenetration of the two cultures and their products; the role of marginal populations in fermenting unrest, low intensity conflict and creating revolutionary potential; and the rationales for dominance that support both the colonialism and the withdrawal. Such matters occur and recur in cycles with dramatic turning points.

1  Charles J. Jefferies, The Colonial Police (London: Max Parrish, 1952). 2  K.C. Wong, “Policing in the People’s Republic of China,” British Journal of Criminology, 42 (2002): 281–316. 3  Georgina Sinclair, Globalizing British Policing (Aldershot: Ashgate, 2011).

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In effect, this scheme might provide an opportunity to uncover also the ongoing role of high policing4 in all systems of policing and the relative effectiveness of this aspect of policing in controlling dissent. It might also permit the exploration of the degree of fit between the “host nation” or society, the cultural ensemble, and the organization of policing. In due course, the types of formal, full-time policing extant in the world could be identified.5 Of central importance are the varieties of religious-based policing, democratic policing, and especially of quasi-democratic policing in which divided societies are policed on behalf of the powerful, dominant groups and to the disadvantage of the subservient groups e.g., policing in Zimbabwe, Northern Ireland, the former Palestine, among others and non-democratic policing as carried out by occupying forces in war or under authoritarian rule (Mao’s China, Stalin’s Russia, Hitler’s Nazi Germany). Policing Hong Kong is a useful, clearly written and timely volume that interrogates the present system of policing and how it interfaces informal and formal social control in Hong Kong. It places the police amid changes in technology, the economy and law, the murky world of public opinion, and efforts of the police to drive reform. They struggle, as do forces across the world, with reimagining policing, its mandate, strategies and tactics. It is rare to read a book that contains description of so many intelligently presented challenging puzzles and cultural changes. This is a well-argued and engaging picture of the transformation of a once popular form of policing.

4  Jean-Paul Brodeur, The Policing Web (New York: Oxford University Press, 2010). 5  Peter Manning, Democratic Policing in a Changing World (Boulder, CO: Paradigm, 2010)p. 25

Preface Government in its various aspects … is now immeasurably stronger than it ever was before … capable of inflicting so very much more harm on the individual as a rule can inflict upon society. J. Steven (1883)

The HKP (Hong Kong Police) is an influential social qua political institution that possesses expansive, pervasive and awesome powers over people’s lives in enforcing the law and executing its duties, e.g. from inspecting bars to directing traffic to stopping and searching people in the street. The police have made their presence felt by acting assertively, e.g. conducting aggressive Police Tactical Unit (PTU) stop and search exercises, and by failing to act passively, e.g. refusing to intervene in domestic disputes. Their powers are more or less felt when invoked in the processes of proactive policing, e.g. traffic enforcement, or when being mobilized by the public to perform reactive policing, e.g. responding to 999 calls (see Table P.1).1 Table P.1 Active Negative

Various Ways of Invoking Police Powers Proactive Selective enforcement (e.g., vice)

Reactive Selective enforcement (e.g., serious crime report) Selective enforcement (e.g., traffic) Selective enforcement (e.g., domestic disputes)

As a matter of balance and for the sake of completeness, it must be pointed out that in practice, the possession of expansive and pervasive powers—in of itself— does not make the police intrusive or dangerous to the public. After all, vested police powers, as a matter of policy or as a result of practice, need not be used.2 1  The idea of active vs. negative and proactive vs. reactive exercise of police power defines different dimensions of police power in action. Each dimension of police power, by itself or in combination with another, allows us to see clearly how police power can be differentially exercised, as shaped by various sociological, organizational or political forces, e.g. police management style and public demand. James Q. Wilson, Varieties of Police Behavior (Cambridge, MA: Harvard University Press, 1968). 2  This is not to deny that unused power held in reserve has a direct intimidating effect and an indirect agenda-setting impact on the people. Roderick Martin, The Sociology of

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This principle is no better illustrated than in the study by Benton who made this observation about the governance of Hong Kong as a colony: For all its lack of democracy, Hong Kong is a colony only in a technical sense, and though constitutionally its government could take the form of a dictatorship, in reality is does not. Constitutionally it is under the Crown, but it acts more like a semi-autonomous city-state, free since 1974 even from the financial controls that London once exercised over it. The colonial government—dominated at the top by British expatriates—decides its own internal affairs largely independently of Whitehall and in consultation with local conservative elites, pressure groups and business lobbies who are in frequent contact with the decision makers.3

This certainly applies to the Royal Hong Kong Police Force (RHKP). All agree that while the RHKP as a colonial police force possessed immense powers beyond the control of the public (e.g., before 1974 there was no institutionalized complaint process), such powers were not blatantly abused or indiscriminatorily used as instruments of political suppression and control.4 This is not to deny that the RHKP was used openly to serve British interests at an institutional level (e.g., the Secret Branch monitored political dissidents) and that the powers were occasionally exploited by the rank and file to serve organizational interests or for personal gain.5

Power (London: Routledge and Kegan Paul, 1977), “Chapter One: System Theory,” esp. pp. 17–19. 3  G. Benton The Hong Kong Crisis (London: Pluto, 1983), pp. 30–31. 4  R.I. Mawby, Comparative Police Issues (London: Unwin Hyman, 1990), “Chapter 6: Hong Kong: Colonial Capitalism,” pp. 86–101; Jon Vagg, “The Legitimation of Policing in Hong Kong: A Non-Democratic Perspective,” in Otwin Marenin, ed., Police Change, Changing Police (New York and London: Garland, 1996), pp. 107–34. 5  My argument is not that the RHKP did not abuse its power. It did. The formation of the ICAC attests to the gross abuse of powers within the RHKP before the 1970s; systemic corruption was part of the RHKP at the organizational as well as personal level. My own experience and other published sources have indicated that there was widespread police nonfeasance, malfeasance and misfeasance before the 1970s, e.g., the summary punishment of suspects, coerced confession, the falsification of records and the fabrication of evidence were rampant. Rance Lee, Corruption and Its Control in Hong Kong (Hong Kong: Chinese University Press, 1981). However, notwithstanding such noted abuses and observed transgressions, the RHKP, given its vast legal power, socially enforced insularity, organizationally induced solidarity, and political lack of accountability, did no worse, perhaps even better in some respects, than most other major urban police departments— e.g., NYPD, LAPD, London Metropolitan Police—then and now. For example, we did not see the RHKP being used by the British as a tool of overt oppression. To the contrary, the RHKP showed tremendous restraint during the 1967 riots, allowing it to earn its Royal title and attract attention from police forces world-wide for its anti-riot training.

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The real danger comes when police are expected 6 to use their power to execute the will of the state, to carry out duties imposed by law, and to meet the demands of the people,7 that is, when the police use the power they have to do a lot of things— 6  The conventional wisdom behind and public justification for government and police accountability is that of the “power corrupts” thesis. The “power corrupts” thesis holds that the more power and less control one is subjected to, the more likely one will abuse that power. The thesis is taken as a self-evident truth; requiring no empirical support, critical analysis or reflective deliberation. (I have observed elsewhere that “The truth of a proposition is inversely proportionate to one’s conviction therein.” In committing to an idea/position, we transform ourselves into an advocate and forgo our role as inquisitor of said idea. We also let our emotion, not rationality dictate our argumentation. In so doing, we allow certain ideas to become stale truisms, fossilized ideas fixed in time and place.) In the case of the “power corrupts” thesis, depending on the level and unit of analysis, the thesis calls for an individual (“bad apple”) (NYPD Commission) or organizational (“deviant organization) (Shearing) approach to the understanding and control of police misconduct. The “power corrupts” thesis, in making the individual or organization a primary site for the understanding (“police personality,” Jerome H. Skolnick, Justice without Trial: Law Enforcement in Democratic Society (New York: Wiley, 1966)) and control (selection, education and control, see Lawrence Sherman and the National Advisory Commission on Higher Education for Police Officers, The Quality of Police Education (San Francisco, CA: Jossey-Bass, 1978)) of police misconduct fails to grasp the incompleteness of the “power corrupts” thesis in explaining police misconduct. At its core, the “power corrupts” thesis, is a supply side police power theory. The adoption of a “supply side” theoretical framework makes clear that there is also the “demand side” to contend with. It is argued here that the lessons learned from economics can be applied to policing when power is viewed as a resource used to satisfy the service needs of the people (crime control, order maintenance, service provision). Power as a resource is also subject to supply and demand in an era of consumerism, managerialism and “performance culture.” This is compatible with a theory of policing based on community policing and civil governance. I raise the issue of “expectation” of police service to highlight the need to look beyond the simple notion that “power corrupts,” which is too individualistic, static and above all ideological. If we go down this (demand) route, we will find that time and again, police excessive use of force, particularly against certain minorities and with most criminals, is supported and driven by public sentiments—from victims’ vengeance, community’s moral panic, mass hysteria and most certainly the public’s desire to see punishment meted out. Ultimately, it is the community (cultural) expectation of when and how to use police power and not the possession of power itself that is of material concern to a police power scholar or controller. The culture of violence literature goes to this very issue. 7  It was Albert Reiss (The Police and the Public (New Haven: Yale University Press, 1971)) who first observed that the police is a democratic force par excellence. The distribution of police presence and force is very much driven by people’s demand. I will add here the notion of “popular” demand. This is the least investigated area. Most police accountability focuses on how to police the police. The nature of the matter is such that it is more effective to do something about the demand structure. In economic terms, there is the supply side and the demand side to the availability and distribution of police power. In police accountability, I argue that focusing on controlling the supply without paying

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such as securing a political regime, keeping social order, protecting individual rights or solving people’s problem. Given the extensive powers of the HKP and the force’s pervasive influence as a socio-political institution, it is surprising to observe that we know very little about the HKP, in theory or practice. In particular, there are few studies investigating how the HKP has changed in philosophy, policy and operations since 1997. For example, one of the major issues of concern to the Hong Kong people in the run up to 1997 was how to police the HKP, given that before 1997, investigating police complaints was always done by the police themselves. The subject of policing the police is one of the several topics covered by this book, which contributes to our understanding of the challenges and opportunities facing the Hong Kong Police following the reversion of political authority from England to China. The book is thematically organized and issues oriented. The issues selected for discussion are those of most concern to: the public, e.g., police accountability; the HKP, e.g., assault on police; political leaders, e.g., surveillance powers; and/or Hong Kong as a whole, e.g., one country, two systems. The book variously deals with such issues as police history (Chapter 1), police accountability (Chapter 2), police use of force (Chapter 3), police beat deployment (Chapter 4), computer crime control (Chapter 5) and police (surveillance) powers (Chapter 6). Chapter 1: “Policing Hong Kong: The Early Years” is a brief social history of how policing in Hong Kong came to be; the Treaty of Nanking obligations, the philosophy, mandate and charter of governance, the characteristics and culture of the Hong Kong people, the criminal and social problems confronted, and the thinking and action taken over law, crime, punishment and control—all these are drawn upon to help in understanding what “colonial” policing work is all about, in theory and in practice. Along the way, the chapter addresses such issues as what did “colonial policing” mean? Why was there a need for “dual track” justice? How did British colonial officials police Hong Kong, fight crime and maintain order? The whole purpose of the chapter is to provide a rich context for readers to understand colonial policing by going to its historical roots, such that in time a comparative judgment can be made as to how policing has changed. Chapter 2: “Policing Hong Kong Police” considers the current state of police powers and accountability in Hong Kong, a subject of most interest to the people of Hong Kong, before, during, and now after 1997. Currently, there is little literature on HKP accountability. Following the Introduction, the chapter is organized into four sections: I. Hong Kong Police Powers: An Overview; II. Varieties of Complaint against the Police System: CAPO and IPCC; III. Patterns of Police Abuse of Power in Hong Kong; and IV. Conclusion: A Preliminary Assessment.

attention to the demand will likely be unfruitful. What do I mean by a demand side police accountability study? As a professional reactionary force or community driven service, the police is in the business of meeting public demands. Public demand for police power services have a definite influence on police conduct

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Chapter 3: “Controlling Police Use of Force” investigates the prevalence, regulation and control of HKP use of force. Following a brief introduction it is organized into five sections. The first contains a brief literature review, which is followed by some discussion and reports on the use of firearms by the HKP. The chapter then explores administrative supervision practices with respect to the use of force, as informed through a case study. A review of the political and legal controls over use of force follows. The chapter concludes with some recommendations regarding research, practices and policies in relation to police use of force in Hong Kong. Chapter 4: “Beat Patrol Deployment in Hong Kong” is a police development policy analysis, touching upon what is the best patrol strategy to reduce the risk to officers on the beat of being shot. On March 14, 2001 a young HKP Constable (PC) Leung Shing-yan was shot and killed in the line of duty. The incident aroused fierce public debate as to whether the HKP should adopt a one-officer (single beat or SB) vs. two-officers (double beat or DB) patrol deployment policy. This chapter addresses critical policy issues raised in the SB vs. DB debate. How should such a policy debate be resolved? What are the pros and cons of both patrol deployment measures? More importantly, what immediate and effective remedial steps can be taken to secure front-line police officers’ safety and security without compromising the public’s legitimate expectation for order and service. This chapter provides the HKP community—policy makers, operational managers and front-line officers—with relevant research literature and pertinent empirical data to understand the issues involved and help resolve the debate at hand in an informed and reflective manner. Ultimately, it is argued that education and training is more important than patrol deployment in reducing the risk of injury to police officers in the line of duty. The removal of side arms and demilitarization of the HKP is also suggested. Chapter 5: “Policing Computer Crime in Hong Kong” investigates how computer crime is created and policed in Hong Kong; a subject matter never explored before in the literature. It is observed that the creation of computer crime is a top-down affair and an externally driven event. It resulted from the convergence of a number of factors and involving a host of parties, played out over time (1996–2003), including the 1997 transfer of sovereignty, political dynamics, private sector (e-banking, e-stock trading) security needs, government IT policy (cyberport development) considerations, foreign anti-privacy concerns, community outrage over Internet gambling, and last but not least, sensational computer crime news coverage. Chapter 6: “Assessing Police Investigative Powers” provides a critical assessment of the Interception of Communications Surveillance Ordinance (ICO) in Hong Kong (2006). Instead of evaluating the ICO based on preconceived and conventional Western jurisprudential principles and foreign legal practices—i.e., individual rights as secured by rule of law—the chapter assesses the ICO with reference to prevailing (Chinese-Hong Kong) cultural standards from within— i.e., that of Qing-Li-Fa (QLF).

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Chapter 7: “One Country, Two Systems of Policing: People’s Republic of China Gong An vs. Hong Kong Police Reform” compares PRC-Public Security Bureau (PSB) and Hong Kong Police (HKP) reforms in onset, process and outcome. The chapter starts by first describing the respective reform measures and then assessing their relative achievements. Following a brief introduction, the chapter is divided into five sections. Sections I and II are devoted to describing how the PSB and HKP were “reinvented.” Sections III and IV assess the PSB and HKP reforms respectively. Section V. “Conclusion” recaps some of the major issues raised and lessons learned from this first-of-its-kind comparative investigation into the “one country, two systems” policing reforms. This book should be of interest to police professionals, policing scholars, policy makers and intellectuals, domestic and foreign, who are interested in policing developments in Hong Kong and China. Currently, no book exists that addresses post-1997 police issues in Hong Kong. Nor is there any standard teaching text for “Policing in Hong Kong” courses. The book can best be used as a basic text for a senior level undergraduate course on “Hong Kong Policing Issues.” It can also be used as a supplemental text in a “Comparative Policing” course. For Hong Kong-bound policing researchers, this is a good reference book—easily accessible and well researched—for investigating various aspects of policing in Hong Kong, post-1997. Finally, it is a must read for foreign policing professionals who want an overview of various policing issues affecting Hong Kong after 1997.

Chapter 1

Policing Hong Kong: The Early Years From the Editorial: … How is Hongkong to be governed by Great Britain? When shall we have a Government that shall govern Hongkong? Where are we to find Government that shall govern Hong Kong? Hongkong Daily Press, November 7, 18711 It is not astonishing, therefore, situated as is Hongkong, with a population recruited almost from the dregs of society, that enormous difficulties should have been experienced from the very outset in establishing a proper form of government in the Colony … A question not seldom mooted has been the fitness of English law for the Government of the Chinese …. James William Norton-Kyshe (1898)2

Introduction British Marines first landed in Hong Kong on January 25, 1841. The next day, without the benefit of a ratified treaty, Commodore Sir J.G. Bremer took “formal possession” of Hong Kong as a Crown Colony.3 At first sight, the Foreign Secretary Lord Palmerston described Hong Kong dismissively as a “barren rock” 1  Solomon Bard, Voices from the Past: Hong Kong, 1842–1918 (Hong Kong: Hong Kong University Press, 2002) (hereafter: Voices), p. 37: “Hongkong is to be governed by Great Brittan through the Foreign Office. We shall have a Government that shall govern Hong Kong as soon as a well-matured scheme of polar representation be combined with a selection of Crown Officers … We are to find a Government that shall govern Hongkong in China and not elsewhere.” 2  Norton-Kyshe, James William, The History of the Laws and Courts of Hong Kong from the Earliest Period to 1898, Vol. 1 (1898) (hereafter: HLCHK), p. vii. The above quotation serves to make clear that the rendering of history is less about “discovery” of facts and more about “construction” of meaning, with self-selected data and pre-disposed perspective in the mix. Jung-fang Tsai, Hong Kong in Chinese History: Community and Social Unrest in the British Colony, 1842–1913 (New York: Columbia University, 1993). (Due to source limitations, more often the not, Hong Kong history has been compiled from a Western and indeed colonial perspective, contemptuously, paternalistically or flirtatiously, but never realistically.) As there are competing and conflicting accounts of Hong Kong history, we need to revisit it often, to check the facts, to rethink the past, to reassess the present. See Tak-Wing Ngo, “Colonialism in Hong Kong Revisited,” in Tak-Wing Ngo (ed.), Hong Kong’s History: State and Society under Colonial Rule (London: Taylor and Francis, 1999), pp. 1–12. 3  K.J.P. Lowe, “Hong Kong, 26 January 1841: Hoisting the Flag Revisited,” Journal of the Royal Asiatic Society Hong Kong Branch, 29 (1989): 8–17.

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not worth fighting over.4 However, in this regard the Foreign Secretary, while echoing the sentiments in England at the time, was grossly uninformed and widely mistaken. Still, Palmerston was pragmatic enough to realize Hong Kong’s strategic importance. He forthwith instructed Charles Elliot to hold onto Hong Kong unless a better substitute became known: “examine with care the natural capacities of Hong Kong, and you will not agree to give up that Island unless you should find that you can exchange it for another in the neighbourhood of Canton, better adapted for the purposes in view; equally defensible; and affording sufficient shelter for Ships of War and Commerce.”5 Before the arrival of the British, Hong Kong was sparsely populated. However, people had lived in Hong Kong for centuries and had developed their own way of life, evidence being a town center at Aberdeen and schools at Stanley. Indeed, from the Chinese standpoint, Hong Kong was hardly a “barren” rock devoid of people and activities, economic or social. Even among the Europeans, Dr Eitel, a veteran of Hong Kong, observed: “For at least a century before the British occupation of Hong Kong, there were already small Chinese Schools in existence in the village of Wongnaichung, Stanley, Little Hongkong and Aberdeen ….”6 “Poor and lawless as most of the Chinese inhabitants of Hong Kong were at the time. They were not forgetful of the value of education.”7 Two years after the British landing, on April 23, 1843, Hong Kong was officially ceded to Great Britain under the Treaty of Nanking.8 Instantaneously, 12,501 local residents became British charges. This chapter describes policing in Hong Kong in the earlier years of the colony.

4  E.J. Eitel, “Materials for a History of Education in Hong Kong,” The China Review 19(5) (1891): 309–10. 5  Steve Tsang, A Modern History of Hong Kong (London: I.B. Tauris, 2004), p. 17. 6  Eitel, “Materials for a History of Education in Hong Kong.” 7  Ibid. The learned Dr Eitel was wrong on two of the three counts. He misperceived and misconstrued Hong Kong conditions of the time. Chinese were not materially rich, but they were hardly poor. They lived on the land and from the sea, frugally. Chinese might appear “lawless” to Eitel (as a foreigner) but were well behaved inside the family/clan, as punctiliously regulated by pervasive customs and demanding morality. 8  See Appendix I to this chapter.

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With the arrival of the British, Hong Kong began to change, first economically,9 then socially,10 politically11 and culturally.12 Overnight Hong Kong transformed from being a sleepy residential enclave at the margin of China13 to a bustling world trade center. Depending on historical narratives,14 Hong Kong also served as a beachhead for the British to promote opium trade in China and/or a window for China to practice free trade with the rest of the world.15 In British eyes, Great Britain was at the peak of its power in the pursuit of its divine destiny. It sought to remake Hong Kong and China in its own image—free, orderly, humane, enlightened and above all progressive: Placed on the borders of an Empire so full of contradictions as China, with its uncontrolled millions, conservative and prejudiced to the backbone, a people totally ignorant and indifferent as to Western ideas or modes of Government, it seems as if Hongkong by it position had been destined to become the starting point from hence a civilizing power by its beneficent rule and humane laws was to endeavour to effect those reforms which an uncivilized power like China was ever in need of.16

However, according to Chinese historians, British rule of Hong Kong was an exploitative and oppressive venture: 9  H.C. Wong, “Sir Henry Pottinger and Hong Kong, 1841–1843,” Chung Chi Journal, 3(2) (1964): 161–74. 10  Elizabeth Sinn, Power and Charity: The Early History of the Tung Wah Hospital (Hong Kong: Hong Kong University Press, 1989); Nicole Constable, Christian Souls and Chinese Spirits: A Hakka Community in Hong Kong (Berkeley, CA: University of California Press, 1994). 11  G.B. Endacott, Government and People in Hong Kong, 1841–1962: A Constitutional History (Hong Kong: Hong Kong University Press, 1964); T.C. Cheng, “Chinese Unofficial Members of the Legislative and Executive Councils in Hong Kong up to 1941,” Journal of the Royal Asiatic Society Hong Kong Branch, 9 (1969): 1–30. 12  Arnold Wright (ed.), Twentieth Century Impressions of Hongkong, Shanghai, and Other Treat Ports of China, Vol. 1 (London: Lloyds Greater Britain Publishing Company, 1908), Preface, pp. 8–9: “Briefly, the aim … is to give a perfect microcosm of the colony or dependency treated. … Thus a work is compiled … enduring value for purposes of reference and for practical business objects, but is of unique interest to all who are interested in the development of the Empire … deals fully with the history, administration, population, commerce, industries, and potentialities of the territories to which it relates.” 13  John M. Carroll, Edge of Empires: Chinese Elites and British Colonials in Hong Kong (Cambridge, MA: Harvard University Press, 2005). 14  Arthur Waley, The Opium War through Chinese Eyes (Stanford, CA: Stanford University Press, 1958); Harry G. Gelber, China as “Victim”? The Opium War that Wasn’t, Center for European Studies Working Paper Series #136 (no date, before 2005). 15  H.C. Wong, “Sir Henry Pottinger and Hong Kong, 1841–1843.” See terms of engagement between the Emperor and Lord Palmerston, pp. 161–2. 16  HLCHK, p. vii.

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Policing in Hong Kong From the day Hong Kong was seized by British colonialists, the governors as rulers became the British government’s highest authority. Under the instruction of the British Crown, governors carried out the mandate of the British empire, were loyal to the British government and executed colonial rule in Hong Kong. Their ultimate goal was to secure maximum profit for the British government, while transforming Hong Kong into a forward base for the invasion of China. The governors occupied a supreme position locally. They stood for democracy in their own country and the West, but in Hong Kong and the East, they were symbols of imperialism. They used cruel methods, stern punishment and oppressive law to suppress the Chinese people. They tolerated no dissent and only resorted to softer cooptation to induce or secure imperial rule ….17

The British ultimately failed in converting the Chinese, not for lack of effort, but due to a poor understanding of what policing Chinese requires and entails.18 The British also suffered problems in maintaining law and order over the European residents. In 1858, the China Mail stated about Hong Kong’s governance: With about 50 officials to govern five hundred merchants and not to govern 60,000 Chinese, who can wonder at disputes, with all our English, American, French, Germans, Moormen, Parsees, merchants, storekeepers, opium-sellers, gamblers and pirates, each under the supervision and control of his own consul or commander, Secretary or Protector, who in their turn are under the control of a Governor, who is under the control of a Secretary of a State? All these are crowded together in a place about half as big as Hyde Park, and people at home wonder that they fall out and fight, slander, and go to law perpetually.19

This book is an investigation into the various issues afflicting the Hong Kong Police (HKP) as it tried to negotiate the political storm and social undercurrent that was 1997. In order to understand the present, we need to inquire into the past. Thus, a study of the policing of Hong Kong in its formative years will be apposite. Specifically, how the British colonial government, given its ideological inclination, commercial interests and imperialistic goals, came to gain control over an alien (nationalistic) and alienated (anti-foreign) population.20 This entails exploring the origin and development of the HKP as an institution, detailing the

17  Zhang Lianxing, The Twenty-Eight Hong Kong Governors (香港二十八總督 – Xiangang 28 Zhongdu) (Beijing: Morning Glory Publisher, 1997), Preface, p. 1. 18  Paul Katz, “Ritual? What Ritual? Secularization in the Study of Chinese Legal History, from Colonial Encounters to Modern Scholarship,” Social Compass, 56(3) (2009): 328–44. 19  China Mail quoted in Christopher Munn, Anglo-China: Chinese People and British Rule in Hong Kong, 1841–1880 (Richmond, Surrey: Curzon, 2001), p. 2. 20  Tak-Wing Ngo, Hong Kong’s History.

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methods of control employed and the problems experienced in colonial policing in Hong Kong. This chapter is organized into seven sections: I. “Seizure of Hong Kong” documents the circumstances leading up to Hong Kong being ceded to Great Britain as a Crown Colony; II. “Mandate for Hong Kong Governance” discusses the treaty provisions (Treaty of Nanking) and royal instructions pertaining to how the people of Hong Kong were to be governed; III. “Hong Kong before the British” contextualizes the current investigation with a brief description of the conditions of Hong Kong—people, place, society—before the arrival of the British; IV. “People of Hong Kong” details the demographics of Hong Kong—composition, organization, characteristics, growth, attitude and relationships. It further explores how such features bear upon policing in Hong Kong; V. “Philosophy and Charter of Governance” describes the terms and conditions upon which Hong Kong was to be governed; VI. “Crime” spells out the nature and extent of crime in Hong Kong at the time; VII. “Origins of Policing” traces the development of the Hong Kong Police, from the appointment of William Caine to the position of first Chief Magistrate, to the installation of Charles May as Chief Superintendent of Police to build the first police force in the Colony. I. Seizure of Hong Kong The story of the Hong Kong Police (HKP) and policing started long before the British ever set foot in Hong Kong. It began with the establishment of the East India Company under Royal Charter: “The Governor and Merchants of London Trading into the East Indies” to conduct trade and commerce in China. The said Charter granted the East India Company a monopoly on trade east of the Cape of Good Hope, including China and Hong Kong.21 The East India Company trade in China was spearheaded by the Macclesfield, which came to Canton in 1699, setting up the Company’s first British factory there. From then and for the next two decades the British were able to monopolize China trade, sending no less than 49 ships there. The Company had to face keen and at times unscrupulous competition from France and the Dutch,22 including chronic violence and occasional setbacks.23 In the end, however, the East India Company defeated its rivals through monopolistic legal protection (Britons were not allowed to work for competitors), sound trade practices (superior quality, favorable financing, reliable contracts), a guaranteed home market (for imported tea and silk), superlative trading organization (a regional trading system extending

21 Endacott, Government and People in Hong Kong, p. 6. 22  E.H. Pritchard, “The Struggle for Control of the China Trade during the Eighteenth Century,” Pacific Historical Review, 3(3) (1934): 280–85, 281. 23 Ibid.

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to India), quiet diplomacy and at times crude corrupt practices.24 However, following the conclusion of the First Opium War (1842), the British were unable to open up other Chinese trade ports, such as at Amoy or Ningpo, for free trade. Canton became the de facto British trade headquarters in China.25 Free trade issues aside, from 1757, in order to conduct trade inside China, foreigners had to follow the straight and restrictive “Canton Trade System” monitoring rules established by the Chinese government to forestall military invasion and prevent cultural corruption by the “foreign devils.” Under the “Canton Trade System” foreign traders, e.g., East India Company traders, could only work through Chinese Hongs (or Cohongs), who acted as guarantors of the foreigners’ conduct in China. In 1782, 13 Hong merchants were acting as go-betweens for the foreigners and the Chinese government. The Hong merchants were supervised by the Superintendent of Maritime Customs for Kwangtung, known in the West as the “Hoppo.” The “Hoppo” collected and levied duties for the Board of Revenue at Peking. Moreover, while in Canton and Macau, traders were at the mercy of the Governor-general of Kwangtung and Kwangsi.26 All traders’ movements were monitored and regulated, subject to heavy punishment. The trading season began in October and ended in March. Foreign ships and cargos had to be approved by the Chinese authorities and to be guided by a certified pilot in Macao before entering the Bogue, on the way upstream to Canton. All ships were anchored at Whampoa and conducted their business there. After clearing their cargoes ships had to obtain port clearance (ch’uan.p’ai) in order to depart Canton. While in Canton, foreign traders had to work out of the “Thirteen Factories” designated by the Chinese authorities in Canton. They conducted their business through compradors who attended to their daily needs and were responsible for their conduct. The factories were all built near the Pearl River, in the southern part of Canton. While in Canton, the traders promised to follow “Eight Regulations”: 1. No foreign warships were to enter the Bogue. 2. Foreign women and weapons were prohibited from entering the factories. 3. Foreigners could not employ Chinese servants or learn the Chinese language. 4. Foreigners accompanied by a linguist could enter Canton city at specified dates only and they were not allowed to ride on sedan chairs. 5. All trading had to be concluded in cash.

24  Ibid. 25  Ibid. 26  Zhuang Guotu, Tea, Silver, Opium and War: The International Tea Trade and Western Commercial Expansion into China in 1740–1840 (Xiamen: Xiamen University Press, 1993).

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6. Cohong merchants were responsible for the conduct of the foreigners. All communications from foreigners to the Chinese authorities had to go through the Cohong. 7. All business transactions were to be made exclusively through the Cohong. 8. All foreigners had to apply for passports on arrival, and they had to leave Canton at the end of each trading season. The First Opium War started on January 7, 1841. The root cause of the war was an imbalance of trade between China and Great Britain; tea was shipping west and silver was flowing east, resulting in huge deficits. In desperation, the British began to sell opium to China in 1817, in violation of China’s prohibition and over the objections of officials. The immediate cause of the war was British Foreign Secretary Lord Palmerston’s insistence on protecting opium traders and seeking full compensation for opium that was destroyed. With the first steam, iron warship Nemesis at its helm, the British Navy launched a coordinated attack on Chuenpi and Tycocktow, the first of many Chinese fortifications up river from Canton.27 The incursion was launched after Captain Elliot, the Plenipotentiary of Trade, had failed in a last ditch effort to negotiate a settlement over Canton trade and related issues with Chinese Commissioner Qishan and his successor Lin. The British force took little time to obliterate the Chinese warships and armaments at Chuenpi and Tycocktow. China’s Admiral Kwan pleaded for a cessation of hostilities on January 8, 1841, promising an armistice treaty to address British concerns, including the opening of trade ports, compensation for seized opium, the release of imprisoned traders and cession of Hong Kong. But the treaty was abandoned before it came to fruition, with the Qing Emperor calling for the extermination of the “foreign devil” invaders, and the killing of Captain Elliot and Sir Gordon Bremer. Conflict between Chinese and British forces renewed in February 1841. In January 1841, following China’s humiliating defeat28 at the hands of the British in the First Opium War (1839–1842), Admiral Kwan agreed to a ceasefire under the proposed Treaty of Chuenpi (穿鼻草約) (January 20, 1841).29 Even 27  Under the Command of Sir Gordon Bremer, in lieu of Commander-in-chief, Adm. Elliot, who was taken ill. 28  William Dallas Bernard and Sir William Hutcheon Hall, The Nemesis in China: Comprising a History of the Late War in that Country from 1840 to 1843: and of the Combined Naval and Military Operations in China: Comprising a Complete Account of the Colony of Hong-Kong, and Remarks on the Character and Habits of the Chinese (London: Henry Colburn, 1847), pp. v–viii. For a brief account of the opium war, see Peter Perdue, “The First Opium War: The Anglo-Chinese War of 1839–1842.” Visualizing Cultures on the Opium War, November 16, 2011 . 29  Alternatively titled, the Treaty of Chuepee. The treaty was agreed upon on January 20, 1841 between Plenipotentiary Captain Charles Elliot and Governor Qishan of

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before the treaty had been approved by the respective state authorities, however,30 British Marines landed at Possession Point31 to claim Hong Kong, unilaterally.32 The proposed Treaty of Chuenpi provided a cessation of conflicts on the following grounds:33 1. The cession of the island and harbor of Hong Kong to the British crown. All just charges and duties to the empire upon the commerce carried on there to be paid as if the trade were conducted at Whampoa. 2. An indemnity to the British government of 6 million dollars, 1 million payable at once, and the remainder in equal annual installments ending in 1846. 3. Direct official intercourse between the countries upon equal footing. 4. Trade in the port of Canton to be opened within ten days after the Chinese New Year, and to be carried on at Whampoa until further arrangements are practicable at the new settlement. The acquisition of Hong Kong drew mixed reactions in Britain, China and Hong Kong.34 British traders in Canton were excited about the new arrangement because they had long felt humiliated personally by Chinese officials.35 Indeed, the Chinese called the traders “foreign devils” and treated them as unruly barbarians. Furthermore, their movements were closely monitored and restricted at the trade post. Foreign trade was strictly confined to Canton. Upon being informed of the

Guangdong Province to resolve opium trade disputes leading to the First Opium War. The negotiation was conducted near Bocca Tigris or Bogue at Shajiao Fort (沙角炮台), also known as Chuanbi fort in Chinese. Hence the Treaty of Chuepee was also known as the Chuanbi Convention. 30  劉存寬, “Might Makes Right, Military Strength Means Truth: Facts and Myths of the Convention of Chupi and How the British Seized Hong Kong by Force” (“强權即 公理,武力即真相,穿鼻草约之真 偽与英國强佔香港島”), June 2, 2011, . (The author argued that despite repeated declaration and proclamation, the British had no right to claim Hong Kong as Crown Colonial on January 26, 1841.) 31  Present-day Hollywood Road Park in Sheung Wan. 32  For a brief history of the founding of Hong Kong, see Hong Kong Government, “A Place from Which to Trade,” Hong Kong Yearbook, 2004 (Hong Kong: Information Services Department of the Hong Kong SAR Government, 2004) . 33  The Chinese Repository, 10 (1841): 63. 34  George Pottinger, Sir Henry Pottinger: First Governor of Hong Kong (London: Palgrave Macmillan, 1997), “Chapter Eight: The Fragrant Harbor,” pp. 63–71. 35  When communicating with the Chinese Hongs, who had a monopoly on trade with Canton, the foreigners had to do so with a “petition,” thus assuming an inferior and humbled (humiliating) position.

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treaty, the Canton Free Press published the following upbeat opinion of British residents in China: We consider that, for an independent British settlement, no situation can possibly be more favourably chosen than that of Hong-Kong. The island itself is of little extent … but it forms, with the neighbouring lands, one of the finest ports existing … Hong Kong would, we doubt not, in a very short time, become a place of very considerable trade, were its possession by the British not clogged with the condition that the same duties at Whampoa are to be paid there; which, in our estimation, destroys at once all the benefits that might be expected to trade there.36

Closer to home, in Hong Kong, the foreign community was also jubilant over the prospect of a more open China with free trade in Hong Kong. On March 14, 1842, in its first opinion, an editorial in The Friend of Hong Kong welcomed the cession of Hong Kong, as it marked the opening of China (“one third of the communion with the rest of the world”), the establishment of a free port (“declaration by the British Government of it being a Free Port”) and held promises of the colony becoming “one of the most important commercial emporia in the East.” Its only reservation was the moral qualm that the opening of China and cession of Hong Kong was achieved via an “immoral” war fought over “Opium Trade.”37 The cession of Hong Kong did not last long, nor did the truce. Neither the Chinese Emperor nor the British government—nor indeed the public of either country—accepted the Chuenpi terms and conditions. The Chinese Emperor Daoguang felt disgraced in placing part of China under British (barbarian) rule. His displeasure was expressed in the follow edict: I, the Emperor, in consequence of opium flowing in poisonous torrents throughout the Central Kingdom, have already transmitted my commands divinely ordering that in every province the most rigorous prohibitions should be on foot. The barbarian merchants of every nation readily yield to restrain, but it was only the rebel barbarian Elliot of the English nation, who made false pretense in order to excite disturbance, which occasioned Lin’s unhappy management and his banishment to the cold country.38

Lord Palmerston, the British Foreign Secretary, had long been ambivalent about acquiring any land in China. He was more interested in gaining free ports and providing for trade security.39 In time, though, he was to change his mind. But, when the acquisition of Hong Kong was announced as a fait accompli, contrary 36  37  38  39 

The Chinese Repository, 10 (1841): 63. Voices, p. 6. Friend of China, July 28, 1842. Voices, p. 2.

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to his instruction, Lord Palmerston was extremely displeased, commenting that Hong Kong was “a barren island with hardly a house upon it”40 and refusing to accept it as a trade station worthy of maintenance and development: “You have treated my instructions as if they were waste paper.” The British public at home also perceived the outcome as a rotten deal, while the Chinese people, fueled by nationalism and anti-foreignism, felt aggrieved. As a result, government representatives of both countries were fired, summarily. Commissioner Qishan, striped of rank and dispossessed of his fortune, was ordered to Peking (Beijing) in chains, to answer for his dereliction.41 Captain Elliot fared slightly better. Unceremoniously removed for his incompetency, he was replaced by Sir Henry Pottinger who became the first Governor of Hong Kong, in July 1843.42 In the meantime, the Whig Government in England fell in 1841 and Palmerston was replaced by Tory Foreign Secretary, Lord Aberdeen, who immediately issued new instructions pertaining to China trade and Hong Kong. He dropped any demand for an island, and asked only for free trade and open ports. It took another 18 months and the threat of renewed conflict from Pottinger43 to seal Hong Kong’s fate as a British Crown Colony. Throughout, Pottinger played fast and loose with Lord Aberdeen’s instructions. Following another round of hostility directed by Pottinger, the Treaty of Nanking of August 29, 1842—an “unequal treaty” between the UK and the Qing Dynasty of China, with terms dictated by the former to the latter—was signed on the HMS Cornwallis anchored at Nanking. Great Britain was represented by Sir Henry Pottinger (later to became the first Governor of Hong Kong) and the Qing Dynasty was represented by Qiying, Yilibu and Niujian, who signed the treaty. The treaty was ratified by Queen Victoria and the Daoguang Emperor nine months later on June 26, 1843. 40  This showed how little Lord Palmerston, and indeed people at home in the UK, know about Hong Kong. 41  The Emperor denounced Keying [Qishan]: “The English have rebelled against us, disobeying our laws and bringing disorder and injury on the ‘Flowery Nation.’ Keying’s [Qishan’s] heart is inwardly inclined towards them; he disregards our families, and, trampling on the people, he thereby degrades the nation. His crime deserves to be punished with death; it is therefore desirable that every one of us should exert himself, that all uniting together, we may start fire to his palace, and then cast his dead body into the street. To do this is not exceeding the law.” Taoukwang, 27th year, 2nd moon, 20th day (April 5, 1847) (Friend of China, April 17, 1847), Voices, p. 22. 42  Captain Elliot departed England on June 1. He proceeded to his official appointment [as British Consul for Texas] via Jamaica, on board a West India Packet Steamer Clyde. (Friend of China, August 11, 1842), Voices, p. 12. 43  Sir Henry Pottinger arrived in August 1841 and with determination initiated hostilities with China. A year later, after pushing up the Yangtze River (Chang Jiang) and threatening to assault Nanking (Nanjing), he brought the hostilities to an end with the Treaty of Nanking, signed on August 29, 1842.

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The Treaty of Nanking, in 13 articles, provided for: the cessation of conflicts (Article I); the opening of five seaports (Article II); the cession of Hong Kong (Article III); war indemnity and compensation (Articles IV, VI and VI); free trade (Article V); war repatriation (Article VIII); amnesty and indemnity to Chinese (Article IX); the collection of taxes, duties and customs (Article X); communication protocol (Article XI); the withdrawal of troops (Article XII); and ratification procedures (Article XIII). (See Appendix I.) II. Mandate for Hong Kong Governance The Treaty of Nanking (“Treaty”) set the stage for the occupation (settlement) of Hong Kong, the first of its kind in the Chinese dominion.44 It was also Britain’s first Chinese colony. The document established the legality and defined the jurisdiction of British rule.45 For the colonial government, this established how the Chinese were to be policed. For our purpose and from a legal-political standpoint one of the most controversial provisions of the Treaty was that of England’s right to govern Hong Kong, and with it hold jurisdiction over Chinese nationals, both indigenous and transplanted. Debate between China and England ensued as to how Chinese nationals, both residents and immigrants, should be treated in the treaty port of Hong Kong. Were the local Hong Kong residents at the time of conquest (1841) or colonization (1843), which amounted to 5–6,000,46 automatically to give up their Chinese nationality upon transfer of sovereignty? Were subsequent migrant workers—settlers or mobile—subject to British law? To both parties, the above issues turned on whether, under (or notwithstanding) the Treaty, Hong Kong was deemed to be a temporary possession (as a trade port) versus a permanent settlement (as a colony) of the British. To the British, and consistent with colonial practices and in line with international law, irrespective of whether Hong Kong was intended (by the British) or understood (by China) to be a possession or sovereign, all Chinese found in Hong Kong or having migrated to Hong Kong became British subjects and were thus entitled to British protection and in turn governed by British law. Foreign nationals, however, in line with British diplomatic practices in China, would be treated according to the law and custom of their own country. This extra-territorial principle, applied to European 44  HLCHK, p. 1. 45  Ming Chan, “The Legacy of the British Administration of Hong Kong: A View from Hong Kong,” The China Quarterly (1997): 567–82, 580. (British anti-democratic, discriminatory, elitist and pro-big business colonial administration never earned public acceptance and legitimacy of rule.) 46  Official surveys showed that 5,650 land residents and 2,000 villagers of different ethnic backgrounds (Hakka, Tanka, Holo, Punti) were scattered over 20 villages and hamlets or on boats in the harbor.

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citizens in China, would equally apply to Chinese in British territories, in this case in the treaty port of Hong Kong. To the Chinese, Chinese nationals would not lose their nationality as a result of the transfer of Hong Kong. For the purpose of policing and governance, the concern was with legitimacy of the British rule, i.e., securing the loyalty of the Chinese subjects. In relation to the British Government, the governance and policing of Hong Kong cannot be understood without considering the overall British interest in securing Chinese dominions in the Canton-Macau-Hong Kong region.47 The point here is that jurisdictional debate over the status of the Chinese population (national, resident, migrant) would have a wider impact and longer consequences than just those related to the ease of governing Hong Kong. It involved consideration of past and future British colonial practices, integrity of the rule of law, and the diplomatic relationship with China, among others. For example, justice administration in Hong Kong—civil, criminal and admiralty—was a continuation of law and practices in Canton, not a brand new invention. Specifically “An Act to regulate the Trade of China and India” (1833) Section 5 stated: “The Act further provided for a Court of Justice with Criminal and Admiralty Jurisdiction for the trial of offences committed by British subjects within the said dominions, and the ports and heavens thereof, and the high seas within one hundred miles of the coast of China ….” Based on this Parliamentary authorization, the King in Council, issued an order on December 9, 1833 stating how judicial process should be conducted: Whereas by … “An Act to regulate the Trade of China and India” … His Majesty in Council … create a Court of Justice, with Criminal and Admiralty Jurisdiction for the trial of offences committed by British subjects within the said dominion of the Emperor of China … which court shall be holden at Canton … or any British ship … in the port or harbor of Canton … by Chief Superintendent for the time being … the practice and proceeding of the said court upon the trial of all issues of fact or law … shall be conformable to, and the practice and proceedings of the Courts of … England … regard being had to the difference of local circumstances … (trial by) … Chief Superintendent … a jury of twelve men … examination of witness … in open court … sentence and judgment of the said court … upon the verdict of such jury, shall be pronounced in open Court ….48

47  “An Act to regulate the Trade of China and India” 3 and 4 Win. IV.c. 93 – August 28, 1833. 48  HLCHK, pp. 2, 3.

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III. Hong Kong before the British Hong Kong is a small island which lies at the mouth of the Pearl River … [it] has an area of 398W square miles. It lies between 113°52'E and 114°30'E, and 22°9'N and 22°37'N. It is 83 miles south of Guangzhou and 39 miles east of Macau. It consists of Hong Kong Island, Kowloon Peninsula (the land which lies to the south of Boundary Street), and the New Territories (including Tai Yue Shan and 235 adjacent islands).49

The name “Hong Kong” does not appear in any Chinese historical records before the Ming Dynasty (1368–1644). Historically, Hong Kong (literally “Fragrant Harbor”) referred to a small village (Heung Kong Tsuen) north-east of Aberdeen Harbor (Shek Pai Wan of old.) Heung Kong Tsai area was known since the Ming Dynasty for growing trees for incense and for exporting incense wood and related products (Kwun Heng). Prior to this, from stone carvings uncovered at Wong Chuk Hang and Tai Long Wan, it has been confirmed that people (Si, Yao, Tang) were living in Hong Kong before the Han Dynasty (206 BCE–220 CE). Little is known about them. During the Tang (618–907) and the Sung (969–1126) Dynasties, most Hong Kong people lived mainly on the south coast of the island. There were at least seven villages then: Hong Kong, Tit Hang, Chung Horn, Chik Chu, Tai Tam, Shau Kei Wan and Wong Nei Chung. The north side (for example, in what became Victoria in the 1840s) was sparsely populated. Hong Kong started to develop economically during the Ming period with the production and export of incense wood and related products. From the late Ming period (1368–1644) Hong Kong was frequently attacked by pirates, in spite of navy patrol from Nam Tau Chai to Tai Pang and Long Pak Kau. During the early Qing Dynasty (1644–1912), in order to fight piracy, a Coastal Evacuation Plan was hatched. People from Hong Kong were evacuated; the villages were abandoned. However, in 1669, in the eighth year of the K’ang Hsi Reign, the Edict of the Coastal Evacuation was revoked and people soon returned. Government military posts and forts at Nam Tau and Tai Pang were then established to fight piracy. During the Chia Ching Reign Pok Fu Lam and Soo Kon Poof villages were established. The Hung Heung Lo Naval Post was also established under the control of the Tai Pang Battalion. In the twentieth year of the Tao Kuang Reign (1840), the Opium War between the British and the Qing Government broke out, following which, in 1841, Hong Kong Island was ceded to the British. According to the Census, on May 15, 1841, 7,450 people in 16 villages lived in Hong Kong. Piracy did not stop when the British took over Hong Kong; for example, Shap Sei Tsai and Tsui Ah Po freely roamed the colony’s waters bringing fear to British traders and disturbance to local residents. However, in the thirtieth year of the 49  Anthony Siu Kwok-kin, “The History of Hong Kong: From a Village to a City,” Journal of the Royal Asiatic Society Hong Kong Branch, 29 (1989): 381–5.

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Tao Kuang Reign (1850), the Qing and British navies finally worked together to suppress piracy along the coast. As a result Hong Kong then became known as “Tai Ping Shan” (the Mountain of Peace). Under British rule, Chik Chu was originally considered the capital city. However, it was later abandoned due to the spread of tropical disease in and around the area. The British then picked an area between the Central and Upper Bays (Chung and Sheung Wan) instead, naming it “Victoria” after the British Queen at the time. Before the arrival of the British, Hong Kong50 was a non-descript part of the larger Xinan District, Guangdong Province, Qing-China. Population was sparse and scattered. There was little economic activity. People lived at the subsistence level, from hand to mouth, on land or at sea. There was little government presence, except for mandatory taxation and obligatory shoreline defense. Furthermore, before the British, crime and disorder were not major concerns. Life on the whole was peaceful and stable. Besides family squabbles, there were piracy at sea, robbers on the thoroughfare and clan feuds between villages. As observed by the Governor in 1845: These people constitute a very peculiar race, being far more commercial, migratory, and maritime in their habits than any other natives of China. Their spoken language is altogether unintelligible to the people of Canton, between whom and themselves a species of irreconcilable feud has existed from time immemorial. Hence they cannot inhabit the same neighbourhood without quarrels, and occasionally bloody conflicts. If land is put up by auction the Fokien (or Chinchew men) would in competition with the Cantonese either be excluded altogether, or mingled with the Cantonese be to the prejudice of general peace and order. It is important to secure the settlement of this class of people (in the present instance men of substance). The Council agreed with me to grant them a special location … placed much to their satisfaction in the neighbourhood of East Point, and they have commenced building on five contiguous lots.51

Social control was informal and customary, morally-based not law-bound, over the person more so than focused on acts. Self-help policing was the rule and family discipline was the norm. From the Qing Government’s point of view, indirect rule by proxy, with family heads serving as deputized control agents of the state, was the best form of 50  In modern vernacular, Hong Kong referred to Hong Kong Island (13 sq. miles), Kowloon Peninsula (18 sq. miles) and New Territories (365 sq. miles), and 230 outlying islands, the largest of which is Lantau Island (59 sq. miles). Hong Kong Island is situated 80 miles south-east of Canton on the east side of the estuary of the Pearl river. It is 11 miles from east to west and two to five miles north to south. 51  Anthony Siu Kwok-kin, “The History of Hong Kong: From a Village to a City,” pp. 381–5.

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governance. Thus family rule was sanctioned by the state. The local magistrate, miles away, was rarely engaged to deal with local disputes, minor disorder or relationship crime. Philosophically, the best governance was not government. According to Confucius “no dispute” (“wuzhong”) was the ideal. IV. People of Hong Kong Carl T. Smith, long time missionary turned distinguished historian, described Hong Kong population growth in the first 30 years of British rule thus: The first decade was characterized by economic and social problems partially created by a shifting and generally irresponsible population …. The second decade of Hong Kong’s history was marked by an influx of population and capital caused by disturbed conditions in South China created by the Taiping Rebellion. This influx turned into an exodus when hostilities began between the British and Chinese in 1857 …. In the third decade there was a revival of trade, and a growing merchant class provided its share of elite. By the end of the 1860s a clearly defined elite group had established itself, providing leadership for the Chinese community.52

When the British took over Hong Kong in January 1841 there were, depending on the source, 5,65053 to 7,50054 people living in and around Hong Kong. The population grew precipitously and exponentially from 12,361 in March 1842 to 19,000 in April 1844. Thereafter the Chinese population continued to grow speedily with the European growing at a snail’s pace. The development of Hong Kong, its successes and failures, is a story of the nature and effort of the Hong Kong people from below, not (or less so) the institution and leadership of the British from above. In sum, collaboration rather than domination, mutuality more than separation, dependence instead of contention, define the relationship between ruler and ruled and shape the identity of colonial Hong Kong.55 Alongside the few local inhabitants, a number of migrants could be found in Hong Kong—most were of two types: European adventurists and Chinese 52  Carl T. Smith, “The Emergence of A Chinese Elite in Hong Kong,” Journal of the Royal Asiatic Society Hong Kong Branch, 11 (1971): 75–115, 75–6. 53  Jung-Fang Tsai, Hong Kong in Chinese History, p. 19. In January 1814, it was reported: “The population then numbered about 5,000” (HLCHK, p. 5). 54  The census showed the Hong Kong population to be 7,500 distributed in 20 villages, including fishermen. Hong Kong Gazette, May 1981. Ng Chi Wah, “The Establishment and Early Development of Police System in Hong Kong,” PhD Thesis, Chinese University of Hong Kong (June 1999), p. 14. 55  Wing Sang Law, Collaborative Colonial Power: The Making of the Hong Kong Chinese (Hong Kong: Hong Kong University Press, 2009).

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opportunists. Who were the Chinese people coming and going to and from Hong Kong? By all accounts, they were all “bad” people: poor, uneducated, disorderly and unruly, i.e., from the lower classes and misfits of society. On June 24, 1845, Samuel Fearon, the Census and Registration Officer, reported on the new arrivals: The arrival of the British fleet in the harbour speedily attracted a considerable boat population, and the profits accruing from the supply of provisions and necessaries at once raised many from poverty and infamy to considerable wealth. The shelter and protection afforded by the presence of the fleet soon made our shores the resort of outlaws, opium smugglers, and indeed, of all persons who had rendered themselves obnoxious to the Chinese laws, and had the means of escaping hither. In course of time the demands for labour, for the public and other works, drew some thousands to the island, the majority of whom were Hakkas or gypsies; people whose habits, character and language mark them as a distinct race. Careless of the ties of home and of those moral obligations, the observance of which is deemed absolutely necessary to the preservation of the national integrity; uneasy under the restraint of law and unscrupulous of the means by which they live, they abandon without hesitation their hearths and household gods, their birthright and their father’s tombs, to wander, unrespected, whither gain may call them. The unsettled state of the Colony, and the vast amount of crime during its infancy afford abundant proof of the demoralizing effects of their presence … (More recently) Hong Kong has been invested by numbers of the Triad Society, the members of which under shelter of a political maxim “outturn the Tsing … and restore the Ming” perpetuate the grossest enormities. I have satisfied myself that most of the burglaries have been planned and attempted by members of this dangerous association.56

So who were the Chinese people not coming to Hong Kong in those years, and why weren’t they coming? Fearon’s comments, above, were not far wrong. Who in their right mind would come to Hong Kong, a godforsaken place of inhospitable living conditions, poor weather, bad company and alien rule? In 1844 the Colonial Treasurer reported: It is literally true that after three years and a half’s uninterrupted settlement there is not one respectable Chinese inhabitant on the island. The policy of the mandarins on the adjacent coast being to prevent all respectable Chinese from settling at Hong Kong; and in consequence of the hold they possess on their families and relatives this can be done most effectually. At the same time, I believe that they encourage and promote the deportation of every thief, pirate and idle or worthless vagabond from the mainland to Hongkong … No Chinese of humbler class will ever bring their wives and children to the colony. The shopkeepers do not remain more than a few months on the island, when another 56  Ibid., p. 80.

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set take their place; there is, in fact, a continual shifting of a Bedouin sort of population, whose migratory, predatory, gambling, and dissolute habits utterly unfit them for continuous industry, and render them not only useless, but highly injurious subjects, in the attempt to form a colony.57

In terms of job composition, the Friend of China reported on March 24, 1842 that a recent Census showed that there were 12,361 souls58 in Hong Kong engaging in 30 occupations. Some of the more noteworthy were chandlers—37 shops/402 souls; rice dealers—1/9; apothecaries—6/22; masons—1/380; tailors—14/89; bakers—11/66; opium sellers—24/131; prostitutes—23/439; laborers—1,366 souls; those not ostensibly employed—500; boat population—2,100.59 The Census further showed that even at this boom time for construction and trade unemployment stood at 4 percent. Perhaps these “ostensibly” unemployed were in fact robbers and thieves waiting in the wings. Examining the population broken down by occupation reveals there were 439 prostitutes, approximately 1 for every 27 males (12,000), a very high ratio. There were also 131 opium sellers, about one for every 89 members of the Chinese population (11,741), an abundance of supply. With an expatriate community of about 500 at the time, most of the Chinese were working to support their privileged and upscale European lifestyle, catering to their every whim and fancy. For example, there were 37 chandler shops with 402 employees, or one shop for every 13.5 expats, nearly one chandler per expat. This is compared to one rice shop for the whole city. In terms of occupation, the biggest group among the Chinese were laborers—1,366. The colony also had a large proportion of boat people, about one in six.60 To the British colonial officers and resident traders, Hong Kong was an unruly place because the people did not follow expectations61 and were not amenable to control.62 They had few social bonds and were exposed to many corrupting 57  Ibid., p. 82. 58  There were different “estimates.” One first person account put the population in Hong Kong at 7,450 in 1841 and 125,204 in 1865, of which 2,000 were foreign. John Thomson, Illustrations of China and Its People (London, 1873–74). 59  Voices, p. 6. 60  Ibid., p. 8. 61  It is clear that one major obstacle to East vs. West integration is how to develop a common sense of (dis)order, or what Chinese term “(bu)gai” (something that should not have happened, happened). In the Hong Kong context and at the time, it was noise at night and hygiene in public places. To the Westerners “quietness” of place was equated with “peacefulness” of mind, whereas to the Easterners “noise” with people was associated with “robustness” in life (sociability, security) and in the moral realm “mui tsai” meant slave to the British but extended relations at home. 62  Fear of crime resulted from insecurity over loss of control. British colonial officers had few informal ways to control the Chinese; without moral appeal and social pressure. What was left was crude punishment.

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influences and illegitimate opportunities. British officials characterized Chinese migrants as fugitives from the law, gold diggers or drifters: In a new settlement, wrested from the Chinese by force of arms, although England be at open war the Chinese government and the Chinese population, yet the latter are invited to repair to hold lands, to build houses, and to become denizens; with such an invitation, under the state of war between the two countries, we have long and often said that only the worst spirits of the warn-out time would flock to Hongkong—our prediction has been fulfilled to the very letter; all that there is of bad and worse in China have flocked and are flocking to Hongkong.63

The Hong Kong inhabitants, day laborers (from Kowloon) and transient workers (from China) were also feared as “terrorists” ever ready to destabilize Hong Kong, especially in the early years of the colonization (“seizure”) of Hong Kong, first without a treaty, and finally under the “unequal” Treaty of Nanking. Indeed, the British were seen as aggressive and shameless “foreign devils” who had invaded China on account of opium trade, and who, after all, were unwelcome guests of the magnanimous Emperor. This view stirred up resentful and emotional sentiments of the most powerful kinds: nationalism, regionalism and antiforeignism. Thus people who worked with/for the British were labeled “han jiang” (traitor), registering the sense of betrayal. The apprehension of the Chinese was real and palpable to the ruling British. In time chronic fear transformed into paranoia and a state of hysteria. At one point rumors were heard such as: “The Chinese are making preparations to attack Hongkong. The force is variously estimated at ten to fifteen thousand men ….”64 But for the Hong Kong foreign communities, disorderly soldiers and sailors could be just as bad: a letter to the editor published in Friend of China in 1842 read: “Sir, the disgraceful scenes of which our streets are the arena, call loudly for magisterial interferences, each day they become worse and worse. You must be quite sure. I can only allude to the drunken delinquencies of our soldiers and sailors: for the conduct of our native population, by contrast is truly admirable.”65 The moral panic66 generated by hateful and contemptuous (“terrorists”), and otherwise immoral and depraved (“criminals”) Chinese, lurking in every corner waiting to strike at every expat, was both real and unnerving. No one was spared, not even well-guarded governors. It was reported in the news:

63  Canton Register, May 19, 1942. 64  Friend of China, April 21, 1842; Voices, p. 9. 65  Friend of China, April 25, 1842. 66  Stanley Cohen, Folk Devils and Moral Panics (London: MacGibbon and Kee, 1972): “[a] condition, episode, person or group of persons emerges to become defined as a threat to societal values and interests.”

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More about the assassination. It is apparently reported in Canton, and is very generally believed, that the officer upon whom it devolved to organize the assassination of Governor Amaral, has been rewarded with a button of considerable ran for his services! And has the promise of a situation of emolument on the first vacancy (from the Hong Kong Register, September 11— Friend of China, September 12, 1849).67

The fear of crime (committed by Chinese) and disorder (conducted by foreigners) in the respective Hong Kong communities needs to put in context. While the British Government might not have been ready to invest heavily in Hong Kong due to legal uncertainty (a treaty not yet having been signed), economic difficulties and a lack of political commitment (politics at home, differences between the Foreign Office and the Colonial Office, conflict between Whitehall and trade representation), a local vibrant expat community was fast emerging and consolidating, and they were committed to making Hong Kong a home away from home. More significantly, they wanted to make Hong Kong every bit like the home they left behind in Europe, with an elegant lifestyle and high culture to match. Their expectations were high (which exacerbated the fear of disorder and the unknown and therefore a sense of helplessness). Thus we witness in 1843, the expat community in Hong Kong attempting to bring high culture to Hong Kong, a place with no culture: Advance Hongkong!!! Theatre Royal … Messrs. Dutronquoy & Co. at length the satisfaction of announcing to the nobility, gentry and clergy thus flourishing and opulent Colony, that the Theatre is advancing most rapidly towards completion. It is on a most splendid scale, and what with the pieces that will be performed, the Scenery that will be introduced and the splendid assemblage of rank, beauty and fashion which they hope to be honored with, there is no doubt but that the blaze of Splendor will dazzle the eyes of all beholders. Vivat Regina. N.B. The actresses have arrived during the last week, their beauties and talents are only to be surpassed by their spotless virtues.68 By 1847, the European community has secured itself a well ornate Hong Kong Club as the center of community social activities.69

The two groups of people (European and Chinese), while different in ethnic composition, cultural disposition and economic circumstance, had one thing in common. Both had uprooted themselves from well-established societies to a new land in search of fame, fortune, adventure and a safe haven. They exhibited 67  Voices, p. 26. 68  Voices, p. 12. (The attempt to introduce a professional theater company into Hong Kong, not yet two years old and beset by war, sickness, and crime, is truly amazing.) 69  Voices, p. 39.

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unbound personal aspiration and few communal bonds/restraints. “Hong Kong became a society of immigrants, sojourners, transients and aliens.”70 As a noted sinologist of the time, Dr Eitel, observed in 1891: The Chinese also, the refuse of whose lowest classes began, early in 1884, to flock to the site of the present city of Victoria, consisted during the first few years of our Colonial history, chiefly of boat-people, common labourers, stonemasons, blacksmiths, and provision dealers, all of whom have come to Hong Kong, in defiance of Mandarin prohibitions, for temporary employment rather than as settlers and left their families on the mainland. They naturally had neither the time nor inclination to think of the education of the young.71

One of the many things that separated the two groups related to the fact that the expat group, notwithstanding having been transplanted from a distant land and uprooted from a different society, still enjoyed a sense of identity, entitlement, community and permanency due to their elevated social status, superior economic position, dominant cultural symbols and controlling political institutions. This was not the fate of the Chinese, who had found themselves in a permanent state of denial and drift: As regards the population of the island, one third have no land habitation but live wholly on the water, another third may be considered in a perpetual state of migration and shifting domicile, and even upon those more respectable people who have longest inhabited the island we have lately seen that more than twenty thousand have abandoned their families and their business at the arbitrary mandate of the mandarins on the mainland.72

Since the Chinese—local and transplants—refused to accept British rule, they found themselves aliens within their own (Chinese) land and culture. “Any Chinese resident here would at present hear with amazement that either himself or his children were no longer regarded as owing allegiance to the Emperor of China but to her Majesty.”73 In the eyes of the British, Hong Kong residents who chose to stay in Hong Kong to work and returned to China (Kowloon, New Territories, Canton) to live were political outcasts. They had no political allegiance to either China or Britain, only an ethnic identity, bonded to attenuated and fading social ties under British rule. This group of people needed to be left to their own accord (indirect rule) but strictly monitored. 70 Munn, Anglo-China, “Chapter 2: Her Majesty’s Chinese Subjects: Government and Chinese People in Early British Hong Kong,” pp. 50–109, 50. 71  Eitel, “Materials for a History of Education in Hong Kong,” pp. 309–10. 72 Munn, Anglo-China, p. 56. 73  Governor MacDonnell (1867) in Munn, Anglo-China, p. 54.

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On the other hand, those Chinese who chose to come to Hong Kong to escape Chinese imperial justice or to seek British colonial fortunes were deemed dispossessed (outcast) people without identity, home and rights. They were treated as disposable commodities, treasured only for their utilitarian function in building Hong Kong, and nothing more. They were never given the chance to claim British citizenship or assimilated into the local Chinese community. As such, if they were found to be offensive, obstructive, disorderly or just not deemed to be in the best interest of the colonial government, they were “liable to deportation as vagrants, suspicious characters, triad society members, banished persons, non-registered persons, criminals wanted by the Chinese authorities, or merely defendants acquitted by the colonial courts.”74 Colonial rule (policing) is about governance, i.e., defining, shaping and maintaining order. This, then, is where the narrative of this study begins. This is not a study of the origin and development of the institutional and operational aspect of the Hong Kong Police (HKP). It is a study of the “social history of policing” in Hong Kong, its origin, evolution and mutation. The “social history of policing” approach therefore includes an investigation into informal agencies and diffuse methods of social control in a society, including extra-legal ones. It furthermore entails the study of policing in other social contexts commonly referred to as “police and society” discourse. It involves how the British as well as the Chinese—mainland and Hong Kong—imagine order, construct crime and practice control. It explicitly rejects the supposition that policing is about authoritarian government control, centralized law enforcement and bureaucratic justice administration, and reading/fitting the past with the present: If all history is imaginative reconstruction, then the historians must constantly re-invent the answer-back. This does not mean to ventriloquize—quite the opposite. It means that the historian needs to listen to the resonance of his own and others’ attempted descriptions and explanations, and must allow historical sources to respond and disturb and upset them. It means a constant effort to lower the historian’s own voice and the stridency of his own time. It means a constant diminution of his sense of knowing the outcome, of the arrogance of his own judgment after the event. However unsatisfactory the conversation, it has to take place—in order to read evidence as elusive and unreliable and the opposite of the inert—within the controlling, changing and growing imagination of the historian.75

74  Munn, Anglo-China, p. 56. 75  H. Silver, Education as History (London: Methuen, 1983), p. 298.

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V. Philosophy and Charter of Governance Philosophy of Governance In deciphering the British philosophy of governance toward Hong Kong, it is best to start with the British government’s colonial objectives generally, and how they applied to Hong Kong and China. In 1837 the House of Commons committee on aborigines observed: “Can we suppose otherwise than that it is our office to carry civilization and humanity, peace and good government, and, above all the knowledge of the true God, to the uttermost ends of the earth.”76 Colonialism was about spreading British values, culture and civilization, captured with and manifested in economic, political and military influence. With regard to Hong Kong in particular, there is no better place to start than James William Norton-Kyshe’s seminal work The History of the Laws and Courts of Hongkong (1898).77 The Preface of this book refers to Hong Kong as the last frontier (“Ultima Thule”), literally (Far East) and figuratively (edge of empire) beyond the boundary and reach of human civilization, to which the British Empire courageously, tenaciously and determinedly reached out “for the benefit of all mankind”: Placed on the borders of an Empire so full of contradictions as China, with its uncontrolled millions, conservative and prejudiced to the backbone, a people totally ignorant and indifferent as to Western idea or modes of government, it seems as if Hongkong by its position had been destined to become the starting point from whence a civilizing power by its beneficent rule and humane laws was to endeavour to effect those reforms which an uncivilized power like China was ever in need of.78

There we have it. Hong Kong (and China) is a desolate and uncivilized place, waiting for British people to enlighten and liberate it, and, if need be, to domesticate before civilizing it. This was not going to be an easy task, as the events and controversies recounted in this chapter attest. The Charter for Hong Kong On April 5, 1843, Her Majesty in Council issued the “Charter of the Colony of Hong Kong” to establish Hong Kong as a Crown Colony:79 “Victoria, by the Grace 76  W. Ross Johnston, Sovereignty and Protection: A Study of British Jurisdictional Imperialism in the Late Nineteenth Century (Durham, NC: Duke University Press, 1973), p. 3. 77  HKLCHK. 78  Ibid., p. vii. 79  Ibid., pp. 21–3.

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of God, of the United Kingdom of Great Britain and Ireland … have thought it fit to erect … our island of Hong Kong and its dependencies … designated as ‘The Colony of Hongkong.’” The Colony of Hong Kong was to be ruled by a Governor, a Legislative Council and an Executive Council. The Governor, with the advice of the Legislative Council, was to make and enforce laws and to maintain order in Hong Kong: And we hereby grant and ordain, the Governor … of the said Colony, with the advice of the said Legislative Council, shall have full power and authority to make and enact all such Laws and Ordinances as may from time to time be required for the peace, order, and good government of the said Colony of Hongkong … in making … Laws and Ordinances … the Governor shall exercise all such powers and authorities, and … Legislative Council shall conform to and observe all such rules and regulations, as shall be given and prescribed … (by the Crown) …. Her Majesty the Queen and her successors “reserve to Ourselves … right and authority to disallow any such ordinances ….

In terms of administration, “an Executive Council should be appointed to advise and assist the Governor … in the administration of the government ….” In terms of legal, judicial and administrative officials, the Governor had the responsibility and authority to appoint judges: “And we do hereby authorize and empower the Governor … to constitute and appoint Judges … Justices of the Peace, and other necessary Officers and Ministers in our said Colony ….” Colonial Instruction for Hong Kong Rule The Governor of Hong Kong also doubled as Chief Superintendent of Trade in China and Plenipotentiary and Minister Extraordinary. The Governor received his appointment to rule from Her Majesty the Queen in Council through a Letter of Patent. An Act of Parliament defined and prescribed the Governor’s authority and responsibility. In conducting his office, the Governor reported to the Foreign Office and the Colonial Office. The Foreign Office set foreign policies and attended to diplomatic relations with other countries, while the Colonial Office was responsible for the direction and approval of all major internal policies affecting Hong Kong. By design and of necessity, except on issues affecting China and other countries, e.g., privacy, the Governor worked more closely with the Colonial Office. The Colonial Secretary was a political appointee and served at the pleasure of the Prime Minister. Since the Colonial Secretary was not a professional and had a short tenure,80 and since communication between the Colonial Office and 80  Between September 1841 and February 1874, the Colonial Secretary changed 19 times with the longest-serving being Earl Grey (July 1846 to February 1852) and the Duke of Newcastle (June 1859 to April 1865). For a list of Colonial Secretaries, see G.B. Endacott, A History of Hong Kong (Hong Kong: Oxford University Press, 1988), Appendix 2.

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Hong Kong Administration took time, the Governor, as the person on the spot, representing the Crown, was delegated with a great deal of power to decide on his own what policy he would like to pursue. The first Colonial Secretary to issue any substantive policy direction for Hong Kong rule was Lord Stanley in June 1843. He instructed Pottinger, the first Governor of Hong Kong, that the Governor was charged with three main duties in running Hong Kong: (1) to continue negotiating with the Qing Government; (2) to supervise British trade and traders in China; and (3) to establish an administrative structure and legal rule in Hong Kong.81 More specifically, however, in the governance of Hong Kong, Pottinger often relied on lessons learned from other British colonies. Mandate to Govern On January 20, 1841, as a first act of governance, Captain Charles Elliot of the Royal Navy, the Chief Superintendent of Trade and Her Majesty’s Plenipotentiary in China, in the name of the Crown, declared the cessation of war and the occupation of Hong Kong and its harbor, from his war office in Macau. On February 2, 1841, having taken formal possession of Hong Kong on January 26, 1841, Captain Elliot issued the following Proclamation of rule over Hong Kong: The island of Hong Kong having been ceded to the British crown under the seal of the Imperial Minister and High Commissioner Keshen [Qishan], it has become necessary to provide for the Government thereof … By virtue of the authority, therefore, in me vested, all Her Majesty’s rights, royalties, and privileges of all kinds whatever, in and over the said island of Hong Kong … And … the government of the said island, shall devolve upon, and be exercised by, the person filling the office of the Chief Superintendent of the Trade of British Subjects in China … And I do hereby declare and proclaim, that, pending Her Majesty’s further pleasure, the natives of the island of Hong Kong, and all natives of China thereto resorting, shall be governed according to the laws and customs of China, every description of torture excepted. And I do further declare … all offences committed in Hong Kong by Her Majesty’s subjects, or other persons than natives of the island or of China

81  CO 129/3: Stanley to Pottinger, June 3, 1844.

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thereto resorting, shall fall under the cognizance of the Criminal and Admiralty Jurisdiction presently existing in China … And I do further declare … all British subjects and foreigners residing in, or resorting to, the island of Hong Kong, shall enjoy full security and protection, according to the principles and practice of British law ….

Captain Charles Elliot’s general Proclamation to the British subjects of February 2, 1841 was preceded by a more specific Proclamation: “To the Chinese Inhabitants of Hong Kong” issued by Bremer, the Commander in Chief and Elliot, the Plenipotentiary. The said Proclamation made clear that: First, the local inhabitants of Hong Kong are subjects of British rule: “all native persons residing therein, must understand that they are now subjects of the Queen of England” and as such “they must pay duty and obedience” to British colonial officials, or risk sanctions. Second, the local inhabitants of Hong Kong, as the Queen’s subjects, enjoy rights and privileges secured by British rule, including: “free exercise of religious rites, ceremonies, and social customs, and in the enjoyment of their lawful private property and interests.” Third, the local inhabitants of Hong Kong “will be governed … according to the laws, customs,82 and usage of the Chinese (every description of torture excepted) by the elders of villages subject to the control of a British magistrate.” Fourth, the local inhabitants of Hong Kong have rights of complaint about “ill-usage or injustice against any Englishman and foreigner,” and to exercise such right will “quietly make report to the nearest officer ….” Fifth, the local inhabitants of Hong Kong are assured that “all heads of villages are held responsible that the commands are duly respected and observed.” Finally, “Chinese ships and merchants resorting to the port of Hong Kong for trade … are … exempted … from charge or duty of any kind to the British government.”83

82  English law taking cognizance of Chinese law and custom had been codified in section 5 of the Supreme Court Ordinance, 1873, which read: “Such of the laws of England as existed when the Colony obtained a local legislature, that is to say, on the 5th day of April, 1843, shall be in force in the Colony, except so far as the said laws are inapplicable to the local circumstances of the Colony or of its inhabitants, and except so far as they have been modified by laws passed by the said legislature.” While Chinese customary law was not mentioned, its preservation was guaranteed by the clause which made English law as of April 5, 1843 “inapplicable to local circumstances.” See E.S. Haydon, “The Choice of Chinese Customary Law in Hong Kong,” The International and Comparative Law Quarterly, 11(1) (1962): 231–50. 83  HLCHK, pp. 5–6.

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Authority of Police On April 30, 1841, Captain Elliot appointed the first Chief Magistrate of Hong Kong in charge of the execution and adjudication of police laws. For all intents and purposes, the Chief Magistrate was the police chief of the Colony. The Chief Magistrate appointed was Captain William Caine of Her Majesty’s 36th (or Cameronian) Infantry Regiment. The Warrant for Chief Magistrate “authorize[d] and require[d] [Caine] to exercise authority, according to the laws, customs, and usages of China, as nearly as may be (every description of torture excepted) for the preservation of peace, and the protection of life and property, over the native inhabitants in the said harbours thereof.” Captain Caine’s penal authorities were limited to: “Imprisonment, with or without hard labour, for more than three months’ or penalties exceeding $400. Corporal punishment exceeding 100 lashes. Capital punishment.” Other cases were to be remitted to the head of department for judgment. As to other offenders in Hong Kong, the Warrant authorized Captain Caine “to exercise magisterial and police authority over all persons whatever … who shall be found committing breaches of the peace, on shore or in the harbors of this island, or breaches of any regulation to be issued from time to time by this government, according to the customs and usages of British Police Law.” It is apparent from the above Proclamations and Warrant that the British wanted to establish a four-tier criminal justice system based on the offender’s ethnic and residence background: First, if Chinese nationals committed a crime in Hong Kong they would be subject to Chinese criminal jurisdiction and law.84 This arrangement is justified on two grounds. Since the Opium War was not fought over Chinese people’s rights but for free (opium) trade and a secure trade station, the British government was not keen on fighting with China over legal domination over Chinese. On issues of jurisdiction over China, the British yielded to the Chinese position. From the Chinese standpoint, the Chinese government had absolute jurisdictional claim over its nationals, wherever they were found, either for protection or punishment. Once a Chinese, always a Chinese. Chinese were expected to carry and dispose themselves as moral agents, worthy of respect, or otherwise not bring shame to their family and disrepute to the motherland. Chinese nationality could not be divested at will, again for protection or prosecution purposes. This compromise over jurisdiction ran counter to the traditional British stance on extending the British rule of law. From the British point of view, and in light of Britain’s enlightened jurisprudential principles and just legal system, the British government stood ready to offer protection to all who sought its shelter. As a proud and strong nation, Britain offered protection to its subjects wherever they were found. The 84  In imperial China and with Qing law, China made no distinction between civil or criminal law. All law violations were considered moral breaches and subject to severe punishment, depending on status, character and attitude of the violators.

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British government had another reason to concede jurisdiction over Chinese, namely seeking a reciprocal stance on the “extra-territorial” treatment of British nationals on Chinese soil.85 It was seen as only fair that the same principle apply to Chinese nationals committing an offence on British-Hong Kong soil, as to a British national committing crime in a China-Canton factory. Second, if Hong Kong (local) inhabitants committed a non-serious crime (one that would not result in capital punishment or for which the fine would be under $400, or lashes less than 100), they would be subject to Hong Kong jurisdiction, but adjudicated under Chinese law, customs and usages, excepting torture. This set-up was based on the tried and tested colonial practice of indirect rule.86 Indirect rule of a colonized people argued that it is more efficient and effective to allow a colonized people to govern themselves, provided that such self-rule does not challenge British security, interests or values. Indirect rule was embraced because: (1) local customs and norms should be respected; (2) locals know best what values to promote and conduct to enforce, and how to apply formal and informal control to bring about safety, security and order; (3) the use of locals to rule locals builds trust and reduces obstruction and resistance; and (4) it bridges language and cultural gaps between the rulers and the ruled.87 Third, if Hong Kong (local) inhabitants committed a serious crime (one that would result in capital punishment, a greater than $400 fine, or more than 100 lashes), they would be subject to Hong Kong jurisdiction and Hong Kong law (issued by the head of the Hong Kong government). If locals committed serious crimes, the British colonial government had a self-interest in maintaining the rule of law, securing social order and promoting British justice, and therefore insisted on taking charge of the adjudication and punishment of the perpetrator. Fourth, all other persons committing crime in Hong Kong (soldiers and maritime cases aside), would be subject to Hong Kong jurisdiction and law. Thus 85  M. Wing Ma, “Foreign Jurisdiction in China,” The American Journal of International Law, 18(4) (1924): 676–95. 86  A dominant narrative portrays the British colonial presence as one of “indirect rule” by a politically neutral state pursuing a laissez-faire policy. Tak-Wing Ngo, Hong Kong’s History, p. 3. Indeed, with this account, British rule over Hong Kong would not be possible without the active collaboration of Hong Kong’s elite and tacit approval of the populace (p. 5). Viewed in this light, Hong Kong was less a British colony than a market place for all sorts of people to pursue their own interests, of which seeking adventure and making money were common denominators. Then as now, different actors, chasing their own dreams, make Hong Kong what it is. 87  Christians were appalled by how indigenous natives, such as aborigines, were treated at the hands of the settlers in Australia, taking their land and enslaving them. They objected to British colonialists meddling with the lifestyle of the indigenous people, e.g., sailors corrupting the locals with alcohol and sex. They were critical of hypocritical liberal elites denying autonomy and destroying the culture of people overseas, in order to liberate and enlighten them. Report of the Parliamentary Select Committee on Aboriginal Tribes (British settlements) (1837).

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all other persons working, living and staying in Hong Kong—e.g., Chinese day workers from Kowloon, short-term laborers from Canton, or transient migrants to California—had an obligation to abide by Hong Kong law. If they did not like the law, they need not come or stay. The dispute over, and resulting confusion and uncertainty regarding, the BritishHong Kong vs. China-Qing government jurisdiction over Chinese nationals and Hong Kong inhabitants was symptomatic of a larger governance problem. British officials were ill-prepared to assume ownership and management of Hong Kong. There was no well-thought-out plan on control and policing. Captain Charles Elliot of the Royal Navy, the Chief Superintendent of Trade and Her Majesty’s Plenipotentiary in China, took charge of Hong Kong in January 1841, only to be summarily removed less than a year later. Captain Elliot was a soldier not a diplomat or administrator, and he had little understanding of China or Hong Kong. The first Governor, Admiral Pottinger, was also a military man. He earned his position as Governor through military distinctions, first in Afghanistan, then China. His tenure in Hong Kong, which turned out to be the shortest of all the governors, lasted from April 5, 1843 to May 1844, with most of the time spent away from the colony. While serving as Governor, fighting a second Opium War in China, and leaving the day-to-day administration of Hong Kong to Alexander Robert Johnson, his rule over Hong Kong was unremarkable, though he did press the British government for the establishment of a more professional police force with officers from London and India. The second Governor, Sir John Francis Davis, was the most qualified for the position, particularly as he was a Chinese scholar who had written a number of books about China before he assumed office. However, his knowledge of China did not stand him in good stead with the European population in Hong Kong. Back in Britain, Whitehall itself was ill prepared to take over Hong Kong because there was little agreement between the Whigs and Tories on whether there was a need to take possession of Hong Kong as a colony, and if so for what purpose, and for how long. Conceivably, if economic fortunes and political circumstances changed, which they still might, Hong Kong could be abandoned or otherwise marginalized and replaced to better serve British commercial interests and imperial ambition The common understanding at that point was that Britain merely wanted a place to rest and resupply their ships. Hong Kong was not intended to be a stand-alone free port generating huge amounts of trade or income. However, the economy of Hong Kong changed over time, and after a few false starts, the Hong Kong colonial government, with the help of the industrious and resourceful Hong Kong people, transformed Hong Kong into a world-class trade port.

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VI. Crime Crimes on Land When the British first landed at Hong Kong in 1841, they found crime and disorder everywhere: piracy, robbery, theft, drugs, prostitution, assault, murder and corruption, real or imagined. Chinese gangs roaming the streets, drunken soldiers creating disturbances in public, and triad societies conspiring behind closed doors were the order of the day. Crime was so bad that The History of the Laws and Courts in Hong Kong reports: The state of crime during 1843 showed no improvement over the previous years. The number of nightly burglaries and gang robberies had alarmingly increased, and the creation of a body of Justices of the Peace, none of them of the slightest use and exceeding in number one-third of the whole constabulary Forces, was considered an absurdity …. Crime was so rampant at this period that a correspondent of the local paper … advised the residents, who had not yet been robbed “but who should soon be … to nail their boxes to the floor, lock them and sleep with a good pair of loaded pistols under their pillows, for as soon as the moon got into her first or last quarters, the robberies began.” … The town up to this period was not lit at night, and it was dangerous to move out at all without running the risk of being attacked.88

At this time, few were spared from the mayhem of crime and disorder, not even high officials such as the Governor or Chief and Assistant Magistrates.89 While, no criminal statistics were being kept at this point, a report was made about the conditions of Victoria jail between August 9, 1841 and September 1843. The report documented by name two groups of prisoners. The first group comprised a total of 482 prisoners, including 430 Chinese, 28 Lascars, nine Portuguese, five Sepoys, one American, and the remainder Europeans. The second group, of 184 names, were mostly European sailors, with three court-martialed soldiers. Given this breakdown, we can draw two conclusions: a lot of crimes were perpetrated by Chinese and Europeans; there appeared to be proportionately more Europeans in jail than Chinese.90

88  HLCHK, p. 29. 89 Ibid. 90  Ibid., p. 89.

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Piracy at Sea In terms of security at sea, long before the British set foot on Hong Kong in 1841, pirates, or “amphibian bandits,”91 were a serious problem in and around the river and coastal waters of Guangzhou and Hong Kong, up to Shanghai and Taiwan.92 Not only did pirates attack sea lanes, rob people, hijack boats and demand ransoms, they also raided coastal settlements for treasure. Their favorite targets were travelers, traders, smugglers and fishermen. The perpetrators were mostly seafaring and costal people. Piracy was big business; it involved millions of taels worth of gold a year. The Qing Government, however, was unwilling to deal with the coastal menace because it only affected poor farmers and brought disrepute to seafaring people (Tangka). Moreover, the Qing naval force was unable to intervene because it was too small, too weak and too pre-occupied with confronting the naval threat from the “foreign devils” to put up a fight. The pirates were also able to outwit, outgun, outrun and outmaneuver the Qing navy and the Hong Kong waterborne police. Unable to fight the pirates, local officials colluded with them by providing protection for pay. Piracy was furthermore facilitated by the costal geography of southern China. The Pearl river estuary, with its many small islands (e.g., Ping Chau, Lantau) and feeding streams, provided ideal cover and resting places for pirates. Narrow waterways were ideal locations to effect interceptions. Moreover, shallow waters favored fast-moving but lightly-equipped pirate junks (moving in packs) over heavy and slow moving Chinese war junks. Their experience and knowledge of local waters also gave the pirates an advantage over commercial transporters and navy expeditionary forces. In desperate circumstances, the Qing Government had been known to bribe the pirates with official titles or reward low-ranking pirates who stopped the trade. In the case of Hong Kong, “[b]efore the arrival of the British, the shores around Hong Kong, Lantau, Cheung Chau and the other smaller islands had been a pirate’s dream and tales of legendary pirates such as Cheung Yi and his wife Cheung Po Choi appear in many studies of the colony.”93 The piracy problem worsened with the Opium War and the destruction of the the Chinese naval force. The cession of Hong Kong opened up free trade ports, opium smuggling lanes and created displaced economic refugees. Together, they generated and motivated offenders, created lucrative opportunities and reduced protection; in short, piracy blossomed. With the Opium War and Taiping Rebellion 91  Lai Yi Fai, “The Role of the Pirates of Kwangtung and Kwangse Province during the Taiping Insurrection,” PhD Thesis, University of California, Berkeley (1950), p. 29. 92  Grace Fox, British Admirals and Chinese Pirates (London: Kegan Paul, 1940); William L.G. Smith, Observations on China and the Chinese (1863), pp. 181–3. 93  Sheilah E. Hamilton, Watching over Hong Kong: Private Policing 1841–1941 (Hong Kong: Hong Kong University Press, 2004), p. 93.

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tens of thousands were displaced. They fled to Hong Kong to avoid persecution, seek tax relief or chase economic dreams. According to local newspaper, Friend of Hong Kong, piracy was a daily affair. In 1844 Governor Davis reported94 that pirates in Hong Kong waters were opportunists, subsistent fishermen turned robbers or seasonal workers plying trade. The modus operandi involved gathering intelligence on choice targets (from insiders), recruiting boat hands (as one-time help, or specialists), hijacking small crafts (as attack crafts), intercepting boats (such as those of innocent seafarers, fisherman), hiding in inland waters (for ambush), splitting the loot and escaping (vanishing without a trace). The British Foreign Office, Colonial Office, Maritime Office, Royal Navy and Hong Kong Government all had an interest in halting the rampant piracy in the Hong Kong-Canton waters. The Foreign Office was concerned with the safety of British subjects, the security of sea transport, and the freedom of trade passages. The Maritime Office and Royal Navy were charged with keeping the water safe for free trade, and British maritime dominance unchallenged. The Colonial Office, as with the Hong Kong Government, was interested in law and order in Hong Kong. Sir Richard MacDonnell was the first to successfully introduce anti-piracy legislation: Ordinance No. 9 of 1866, to “make Provision for the more effective Suppression of Piracy.” Soon thereafter, the Supreme Court was given extensive power for the Suppression of Piracy (No. 12 of 1867), and in 1869, another Suppression of Piracy Ordinance (No. 1 of 1868) was passed “to make Provision for the more effectual Suppression of Piracy.” Section VII allowed the Governor in council to create regulations for anti-piracy search and seizure and, more significantly, “to impose such restrictions on the movements and actions of vessels as may seem desirable to render such searches effective.” Opium Trade95 Opium was prohibited in China and banned on the high sea. Nevertheless, in Hong Kong it was freely traded and consumed. The nature and extent of the drug problem was expressed in a letter to the editor of the Friend of China (and in the editor’s response) written by a Dr McGowan, an American Baptist: The [opium] traffic is the bane of China, it is carried on at Hongkong as briskly as it ever was at Lintin. At the former place it was protected only by the arms of the smuggler. Here is it carried on against the laws, but with the connivance of the British authorities.

94  CO 129/6/282–287: Davis to Stanley, June 21, 1844. 95  The Treaty of Nanking (1843) did not explicitly deal with opium trade in Hong Kong. Opium was still illegal by Chinese law and smuggling, a common practice. Despite such ambiguity, the British opium trade flourished in Hong Kong, and was legalized.

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32 The editor comments:

Every word of this paragraph is untrue, and displays gross ignorance—we will not say deception—on the part of the person who penned it. The opium trade is not against the laws of Hongkong … Unfortunately for the prosperity of the colony it is not carried on as briskly as it ever was at Lintin.96

In another newspaper opinion piece, the problem of opium farming was discussed. The message was clear: the British Government should not condone opium farming and trading. The Opium Farm: The Governor of Hong Kong by his fiscal measures has deprived the Chinese of every remaining inducement to settle on the island. The most grievous and impolitic of these measures is what is called the “Opium Farm”; a monopoly which secures to one man the right of selling opium on this island in less quantities than one chest … If it is an “iniquitous” trade let not the British be directly implicated in it, by putting up to auction and letting the exclusive right to sell it … In this country, all classes of statesmen acknowledge the injustice and impolicy of raising money by means of … monopolies. The system is identified in the British mind with the misfortunes of the days of King Charles I.97

Crime Control Measures The crime fighting method in Hong Kong during the earlier period (1841 to 1860) was one of brute suppression, through registration, curfew, surveillance, transport and lashing, visited mostly on the Chinese. There were a number of reasons why the British colonial government adopted such measures. First, Chinese were deemed uncivilized and brutal people. They did not understand reason or follow law. They only reacted to stern punishment because they only understood force. Second, the British had no way of separating the law abiding from the law offending Chinese. In the eyes of the British, every Chinese was a potential threat, and therefore a legitimate target of control. Third, the British had little cultural understanding of Chinese ways and means. They were unable to conduct discriminate policing, e.g., through investigation and during interrogation. Fourth, British officials could not speak Chinese, and found the Chinese community and people inaccessible. Fifth, British police officers in the Hong Kong force were small in number and not well trained. Nor did they have the resources or capability to conduct community policing. Seventh, the police were overwhelmed by the number of crimes and Chinese people they had to deal with.

96  Friend of China, August 9, 1845; Voices, p. 19. 97  Friend of China, January 30, 1847; Voices, p. 2.

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VII. Origins of Policing They’ve given you are as “Guardians of the peace” An inefficient staff of mix’s police, A pretty motley group of roughs I’swear, A riff raff, pick’s here’n alone knows where, Drunken Europeans, and the lanky Sikh, Who cannot understand a word we speak, Lazy Indians, too, from various tribes, Chinese detectives who are fond of bribes— In league—if all I hear be true— With gamblers, thieves, and even murderers too, Shame on the Government, shame I say, To keep such “barefac’d” robbers in their pay. Mr. Smale’s (Chief Justice)—local song on Hongkong Police (1871)98

The Lack of Institutionalized and Organized Control For the first two years of British rule, 1841–43, Hong Kong had little institutionalized99 or organized100 social control over Hong Kong. Formalized legal, bureaucratic and professional social control simply did not exist.101 Indeed, colonial officials spared little effort in dealing with the serious, pervasive and looming crime and disorder problem, other than imposing draconian punishment 98  Hongkong Daily Press, July 12, 1871; Voices, p. 37. 99  As used here, institution of social control means the consistent and persistent forms and functions of control by way of internalization of norms or maintenance of structure. Being new to the governance of Chinese people, with an uncertain prospect, the colonialists were hard pressed to come up with any institutions of control, such as police, court, jail, still less institutionalization of social control. L.G. Zucker, “The Role of Institutionalization in Cultural Persistence,” American Sociological Review, 42(5) (1977): 726n–743. 100  “Organizing is the function of management which follows planning. It is a function in which the synchronization and combination of human, physical and financial resources takes place.” See “Organizing Function of Management” Management Study Guide, no date, http://www.managementstudyguide.com/organizing_function.htm (Visited March 26, 2012). 101  In analyzing social control in Hong Kong, the police is an important agency undertaking important activities. However, there is a need to distinguish clearly between policing people (British nationals (UK)) and naturalized (HK) subjects, and Hong Kong inhabitants (Chinese nationals turned British subjects). For example, to the British colonizers and Chinese migrant workers, there were no institutions and institutionalized social control, formal (e.g., police) or informal (e.g., family). But to the local Hong Kong residents—villagers (before British)—there were both institutions (e.g., family, clan) and institutionalized (village head, magistrate) social control. At the current juncture, I am only interested in exploring social control, policing included, from the British perspective.

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reactively, reflectively and ferociously, to express disapproval, to air frustration, to vent anger and to demonstrate raw power. A colonial official at the time observed: “Daring gang robberies were frequent at this period and complaints were rife as to the inability of the authorities to cope with them, in consequence of which the Chief Magistrate issues a proclamation in Chinese on the walls: ‘It appears that recently a great many night robberies have been committed … Hereafter all Chinese, besides the usual watchmen, are forbidden to walk the streets after 11 o’clock at night and whosoever shall violate this prohibition shall be arrested by the Police …’ (October 4, 1842).” In the absence of effective state protection, European residents were known to take the law into their own hands, often with deadly consequences: The first Coroner’s inquest recorded was held on 1st October, 1982 … into the cause of death of a Chinaman whose body had been found floating close to the pier on the morning of the same date bearing a gun-shot wound, and who was said to have been one of a gang of thieves who, on the previous evening, had broken into the premises of a local merchant named J.F. Hight, and at whom the latter had fired a random shot. The jury returned a verdict that “the Chinaman was shot by the pistol” and there the matter seemed to have ended.102

From the inquest above, it appears that at this time, everyone was expected to possess weapons for self-defense. And, killing “in self-defense,” especially Chinese, by Europeans merchants was both routine and acceptable. There were a number of reasons behind the officials’ failure to act on the law and order crisis in Hong Kong. First, the few British colonial officials charged with occupying Hong Kong had few instructions, and were pre-occupied with facing up to—militarily and diplomatically—the Chinese in a war and with a war-time mentality. They were also involved with moving the British trade office in China from Macau to Hong Kong. “The attention of the Government and the European community was much engrossed with the removal of property and personnel from Macao to Hong Kong … Everything was altogether too unsettled yet, to admit even of the thought of any measures towards improving the educational condition of inhabitants ….”103 Beyond the lack of progress in policing and education, the Criminal Court was also not well developed and did not open until March 1844, four years after the British landed in Hong Kong, and a full year after the Chief Magistrate and Marine Magistrate were appointed in April 1843.104 Even with the opening of the Criminal Court to try serious cases and impose heavy punishment, the public still had cause to complain about a lack of legally trained jurists, a shortage of competent interpreters and insufficient legal presentation.105 102  103  104  105 

HLCHK, pp. 15-17. Ibid., p. 20. Ibid., p. 37. Ibid.

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Second, there was tremendous uncertainty and disagreement over the financial outlay for, legal status and commercial prospects of Hong Kong. “At the beginning there was a difference of views between London and its men on the spot in estimating the value of Hong Kong.”106 The Queen. Upon notification of the news of a new colony, Her Majesty the Queen’s husband was amused.107 Foreign Secretary Palmerston. Initially (1841), Foreign Secretary Palmerston saw no commercial value in holding Hong Kong, claiming that it, “would not be the Mart of Trade any more than Macao,”108 only to change his mind later, as is evident from his instructions to Pottinger (1842) before the latter set sail for China that “he should examine with care the natural capacity to Hong Kong” and not “give up that Island unless … (he) … can exchange it for another in the neighborhood of Canton, better adapted for the purpose in view; equally defensible; and affording sufficient shelter for Ships of War and Commerce.”109 Foreign Secretary Aberdeen. Palmerston’s successor, Aberdeen, thought otherwise. He was concerned with holding back administrative expenditures in Hong Kong and maintaining good working diplomatic relationships with China and other nations.110 Captain Elliot. At all times Captain Elliot believed strongly that Hong Kong would be “the chief basis of our operations in China, Militarily, Commercially, and Politically.”111 Colonial Treasury of Hong Kong. The first Colonial Treasurer of Hong Kong, Robert Montgomery Martin, took a gloomy view of its future economic value.112 Just as politicians in the UK versus administrators in Hong Kong were not in agreement on the purpose of acquiring Hong Kong or its functions and prospects in advancing the Empire’s interests, there was no grand vision or detailed plan for its development. The philosophy seemed to be invest little, do no wrong and play by ear.113 Such uncertainties necessarily led to a live and let live mentality at ground zero, as is evident in the piecemeal approach taken towards the immediate problems of the day, such as crime. Third, the British had no pre-existing plan to take over Hong Kong. Hong Kong was one of many possible sites for the British to refit their boats, store their goods and rest their bodies outside the trade season. The British Government in 106  Tsang, A Modern History of Hong Kong, p. 17. See also Cindy Yik-yi Chu, Foreign Communities in Hong Kong, 1840s–1950s (London: Palgrave Macmillan, 2005), “Early Beginnings of British community (1841–1898),” pp. 17–39, 18. 107  Cindy Yik-yi Chu, Foreign Communities in Hong Kong. 108 Tsang, A Modern History of Hong Kong. 109 Ibid. 110 Ibid. 111 Ibid. 112  Cindy Yik-yi Chu, Foreign Communities in Hong Kong. 113  Ibid., p. 7.

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the Foreign Office and Colonial Office was unconcerned about making any special arrangements for Hong Kong, hoping to govern using its experience and protocols from other colonies.114 For example, in spite of the fact that Sir Robert Peel, the putative father of modern policing, sat in the Parliament at the time, there is scant evidence that he was involved in shaping Hong Kong policing, other than helping in 1845 to recruit London Metropolitan Police for colonial service.115 Indeed, there was no public debate or community discussion on how policing should be conducted in Hong Kong.116 There was, however, extensive internal discussion on how to organize and fund a Hong Kong police force, on issues of manpower, recruitment, funding, organization, deployment and control.117 Years later, researchers raised some of the questions never asked at the time: Could the British system of common law and organized policing be applied to Hong Kong? Could the people of Hong Kong understand and embrace the spirit of common law-based policing? What kind of police system would best fit the need to maintain order in a unique colony such as Hong Kong?118

114  See Charter of Hong Kong. 115  There were claims, but no evidence, that the Hong Kong Police was built upon a London Metropolitan Police (LMP) model. Indeed, the LMP was a civil policing model based on citizens’ approval. Community engagement and social service was the prototype. An armed police directed at suppression of Chinese with coercive measures, e.g., registration and lashing, was inconsistent with the LMP model. “Police, at all times, should maintain a relationship with the public that gives reality to the historic tradition that the police are the public and the public are the police; the police being only members of the public who are paid to give full-time attention to duties which are incumbent on every citizen in the interests of community welfare and existence.” Peelian Principles, . 116  What are some of the more fundamental or general principles of policing, e.g., self-help–indirect rule vs. professional–central control? An inquisitorial vs. an adversarial prosecutorial system? Confession vs. an evidentiary based system? How far and on what grounds should the colonial government alter or depart from these policing principles in dealing with Hong Kong, as a colony or with its people (Western or Chinese)? In contrast, the subject of role of state and content of curriculum in Hong Kong education was a hotly debated subject, involving many of the governors, officials and missionaries. The drastic contrast in the treatment between education and policing policy and organization during the early years of Hong Kong cannot be easily dismissed as accidental. Part of the reason might be education reform in Hong Kong had natural allies and established champions in the missionary orders, long active in China, who were keen on using Hong Kong as a base to build up their influence in Hong Kong. From The Central School: Can it Justify its Raison d’être, anonymous pamphlet, 1877, pp. 15–16; Anthony Sweeting, Education in Hong Kong, pre-1841 to 1941: Fact and Opinion (Hong Kong: Hong Kong University Press, 1990), p. 33. 117  Austin Kerrigan, “Policing a Colony: The Case of Hong Kong 1844–1899” PhD dissertation, Cardiff Graduate Law School, University of Wales (2001), esp. Chapter 4. 118 Ibid.

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Fourth, there was a lack of competent leadership in the governing of Hong Kong. The first two leaders, Elliot and Pottinger, were distinguished military officers, not experienced (colonial) administrators. Other than as adversaries they had limited education in, experience with and understanding of the Chinese language,119 culture and people.120 In the law enforcement and policing arena, the first Chief Magistrate, in charge of police and jailing, William Caine, was a loyal and hard-working soldier, who knew nothing about law, still less about policing. As a result, he ran the Hong Kong justice system by employing military methods and efficiency.121 In the first Legislative Council, all three official posts were filled by military officers.122 Fifth, there was no functional colonial administration or police establishment to deal with law and order, including policing, problems. The Original Framework of Control As intimated above, from the earliest days, policing in Hong Kong operated on a dual track. The very first Proclamation (February 2, 1841), of Captain Elliot for the cession of Hong Kong, provided that Hong Kong locals and Chinese natives would be “governed according to the laws and custom of China, description of torture excepted,”123 and that “Her Majesty’s subjects” and all other people except for “natives of the island or of China” would be governed by British law, namely under “Criminal and Admiralty Jurisdiction presently existing in China.”124 119  In September 1941 an article in Blackwood’s Magazine noted that the “grossest of abuses” in the British venture in China was that of lack of understanding Chinese language and culture. The author ended the article “Chinese Interpreters” with this dire warning: Without the facility of language, “We shall never obtain one glimmer of the Chinese meaning, nor they of ours, if some remedy is not instantly applied to the grossest of all abuses” (i.e. lack of qualified translators and interpreters) (HCLHK, p. 11). 120  There were rare exceptions within the Hong Kong colonial government ranks, most of them were missionaries turned Chinese scholars, and served the government as officials or counselors, such as Gutzlaff, Legg, Clements. For example, Karl (or Charles) Gutzlaff, a sinologist, was a Lutheran Missionary. He served as Interpreter and Assistant Secretary to the British Superintendent of Trade at Macau (1934 to 1839), Chief Interpreter and Assistant Secretary to Superintendent of Trade in Hong Kong (1840 to 1942) and Chief Chinese Secretary (August 1842). 121  G.B. Endacott, A Biographical Sketch-book of Early Hong Kong (Hong Kong: Hong Kong University Press, 2005), “William Caine,” pp. 60–66. Christopher Munn, “Scratching with a Rattan: William Caine and the Hong Kong Magistracy, 1841–1844,” Hong Kong Law Journal, 25 (1995): 213. 122  HLCHK, p. 40. 123  Charles Elliot, Chief Superintendent of the Trade of British subjects in China, Proclamation, February 2, 2041, reprinted in HCLHK, p. 5. “Torture” here referred to extralegal torture, not legislative torture, e.g., lashing of convicted criminals. 124  Ibid.

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Furthermore, British subjects (natural or naturalized) and foreigners “residing in, or resorting to, the island of Hong Kong, shall enjoy full security and protection, according to the principles and practices of British law, so long as they shall continue to conform to the authority of Her Majesty’s government ….”125 Seizing upon this “dual track” governing mandate, Bremer, the Commanderin-Chief and Elliot, the Plenipotentiary, announced “To the Chinese Inhabitants of Hong Kong” on February 1, 1841 how they were to be governed and policed: “They will be governed … according to the laws, customs, and usages of the Chinese (every description of torture excepted) by the elders of villages, subject to the control of a British magistrate … and all heads of villages are held responsible that the commands are duly respected and observed.” If they were not happy, they had the right to complain about “ill-usage or injustice against any Englishmen or foreigners … to the nearest officer ….” This was the clearest statement yet of the indirect rule of the Chinese under Chinese law and by Chinese elders, but with at all times these Chinese elders and judicial processes being monitored and controlled by the British magistrate.126 This then was the ground of the first social control / policing system in Hong Kong, as it applied to the Chinese. Dissatisfaction with the “dual track” criminal justice system started to emerge in 1843. Public opinion (that is, European voices) argued that such an arrangement was “ill conceived and impolitic, or simply [that there was] no point to treat Chinese differently with inferior law and administration”; “though the large bulk of the population was Chinese and mostly of the worse class, still the British laws were admirably suited to their necessities and fully adequate to all their moral and social exigencies.”127 Besides, it was a wrongheaded policy to guarantee, maintain, promote and otherwise keep alive the law, custom, language, culture and way of life of a colonized people, thereby stopping them from growing and advancing with the British in the lead. In order for the Chinese to learn and in time appreciate the British system of law and justice, they first had to let go of their language, customs and manners and adopt those of the British.128 The issue of justice reform in Hong Kong and doing away with the “dual track” system made it to the House of Commons on February 17, 1843. The Parliamentary debate did not change the “dual track” rule, however, until late 1875. Section three of Ordinance 5 of 1844 allowed Chinese to be punished by Chinese law in all criminal proceedings before

125  Ibid. 126  HLCHK, p. 6. 127  The test referred to “public opinion” only. But the only people who had a voice were the British and foreigners. Few Chinese spoke or wrote English. Most British did not speak/read Chinese. British and Chinese rarely socialized or communicated, beyond work. There was no Chinese platform, e.g., a newspaper. As a result, the only time Chinese voices were heard was when the Chinese took drastic action, such as striking. 128  HLCHK, p. 19.

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the Supreme Court. While Section 25 of Ordinance 10 of 1844 allowed Chinese offenders to be punished by Chinese law before Justices of the Peace.129 Origins of the Hong Kong Police Policing in Hong Kong began with the appointment of Chief Magistrate, Captain William Caine130 on April 30, 1841. Caine was in charge of police, courts and prisons. As such he was responsible for maintaining law, order and justice in the colony.131 In this way, Caine’s role, function and power were not unlike those of a Chinese magistrate—one “person” having “total” responsibility for the law and order, safety and security, welfare and happiness of the people. In imperial China, the local magistrate, as with the heavenly Emperor, personally assumed the role of a parent in taking care of the well-being of his charges. There was very little supervision and accountability, officials were guided and sanctioned by heavenly mandate. There were no institutional checks and balances, such as the legislative, executive and judicial separation of power. All three were integrated in search of what was right and wrong, more generally what ought and ought not occur. Thus “ought not” (“bu gai”) implied something that should not have happened, not just a violation of law or defeat of justice. The magistrate, in delivering judgments on what “ought” to be was not assuming the role of a judge or adjudicator per se, but functioning as a moral person doing the right thing. As such the magistrate’s role as a judge could not be separated from the character of his personhood. They were one and the same. A number of points of note arise here in terms of criminal justice administration within the Chinese community in Hong Kong. First, the local Chinese community was very much left to its own devices, undisturbed. Second, approaches to the control and punishment of Chinese in the colony were borrowed from traditional132 129  HLCHK, p. 20. 130 Endacott, A Biographical Sketch-book of Early Hong Kong, “William Caine,” pp. 60–66. “Captain William Caine (1798–?) was the Colonial Secretary of Hong Kong from 1854 to 1859. He was the acting Governor of Hong Kong between May and September 1859. Caine was also Chief Magistrate, who was the head of pre-Hong Kong Police Force from 1841 to 1844. Later Caine became Colonial Secretary and Auditor General. Captain Caine was born in England in 1798 and served in the British Army’s 26th (Cameronian) Regiment of Foot during the Peninsular War against Napoleon in Spain. His regiment was later transferred to Hong Kong and he began his long association with the colony.” 131  Mark S. Gaylord and Harold Traver, “Colonial Policing and the Demise of British Rule in Hong Kong,” International Journal of Sociology of Law, 23(1) (1995): 23–43. (This article discusses the origin and development of Hong Kong, particularly how it transformed itself from a colonial (discriminatory-coercive) force to a more democratic (indigenous-service oriented) organization, as 1997 approached.) 132  I have used “traditional,” not “imperial,” to make clear that in China of old, law followed morals, of the secular and customary kind. This is because morality in China, unlike in the West, is woven from daily intercourse below (being secular in solving

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China, e.g., registration, shaming, lashing and deportation. Third, criminal justice administration was personal, not institutional. Fourth, substantive justice was preferred over procedural justice. As a “parent” Caine loved and cared for the people, much like any responsible military commander would, and would stop at nothing to support them, and to save them from harm inflicted by crime. As a military officer he had zero tolerance for deviance, crime and disorder. As a disciplinarian, he believed in meting out harsh punishments to exact retribution from criminals and to deter people from committing crime. As a professional soldier serving Her Majesty the Queen, he was disciplined and hard working. He never took time off and even walked the street himself. In time, Caine came to personify law and order in Hong Kong. He was the face of justice in the colony. And to the people of Hong Kong, he was more famous than the Governor. But one person, however resourceful and diligent, could not keep crime in check and criminals at bay. Caine’s law, order and security duties were thus divided as follows: 1. Elders and village representatives took care of the Chinese inhabitants. 2. Justices of the Peace helped with securing peace and order among the European community, mainly in Victoria. 3. The Marine Magistrate and water police dealt with the harbor and piracy. 4. The Hong Kong Police were in charge of public security in and around Victoria. 5. Private security and guards provided safety and security for firms and private residents. In fact “During these first months of settlement, there was no organized public police force and the only kind of policing was provided by the occupants of the individual premises.”133 On 1 May 1844, Hong Kong passed its first Police Ordinance. As envisioned by the Governor, Sir John Davis and supported by Whitehall, the newly established Colonial Police Force was modeled after the London Metropolitan Police, minted 15 years ago in 1829, by the putative father of modern policing, Sir Robert Peel. The Colonial Police Force was a civilian constabulary to be lead and staffed mainly by experienced British police officers and senior officers. Unlike their counterparts in England, Hong Kong police are heavily armed— European with short musket and light cutlass and Indian and Chinese, a staff, a cutlass and a rattle. In the beginning the Colonial Police Force had a hard time to recruit competent and responsible officers fit for service. They consisted of renegade and drunk soldiers and dispossessed and depraved Chinese. [Charles] May augmented the original force with 41 soldiers, 30 from the local problems of human intercourse) rather than conjured up above, as a secluded and prolonged exercise of speculative thought (being philosophical in dealing with logical issues). 133 Hamilton, Watching over Hong Kong, p. 16.

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garrison and 46 Indians and 51 Chinese, to make up a total establishment of 168. During this period May considered Chinese constables as abusive, corrupt and otherwise “utterly useless and untrustworthy” (Colonial Office 1846). May has tremendous difficulties in recruiting, maintaining and controlling the police. Within 9 months, the force was reduced by one-third through deaths, resignations and dismissals. In 1854, European constables on an average lasted for 3 months. There were only 4 who served for one year.134

Some Concluding Thoughts on the Study of Policing in Hong Kong Under Caine’s stewardship, the skeleton of the first Hong Kong police force emerged. The force consisted of 93 soldiers detached from the British and Indian regiments garrisoned in Hong Kong, together with 37 Chinese recruited locally. Two matters bearing on the larger question of colonial governance strategy and style need to be addressed to understand fully how—for what purpose, to what end, by what means—colonial policing was conducted in Hong Kong during the formative years: Why did the British colonial government police Hong Kong with a predominantly foreign force?135 Why did the British colonial government police Hong Kong with soldiers, not civilians?136 The conventional wisdom, especially from liberal/critical scholars, human rights activists and nationalists, is that both questions raise fundamental and recurring issues with the legitimacy and morality of colonial rule in Hong Kong. Colonial policing is a denial of the human right of self-determination. The use of predominantly foreign troops made things worse in three ways. First, it made colonial rule blatant and obvious—i.e., the British colonist knowingly and shamelessly denied Hong Kong-Chinese the right to self-determination. Second, the refusal to use Hong Kong-Chinese as policing agents meant that the alien norm and alienating discriminatory impact of colonial rule could not be compromised through mediation, negotiation and interpretation. Third, the use of foreign “troops” meant that the people of Hong Kong were not permitted to question the legitimacy of the rules, failing which they were dealt with by the force of arms. Conventional wisdom aside and the critical assessment of colonial policing excepted, there might be other more situational and compelling reasons to explain why the policing of Hong Kong was conducted with primarily British soldiers. The use of a colonial policing framework to explain policing in Hong Kong without also considering other competing paradigms or complementary factors runs the risk of essentialism, of which idealism is the worst kind.

134  Colin Crisswell and Mike Watson, The Royal Hong Kong Police (1841–1945) (Hong Kong: Macmillan, 1982). 135  Ng Chi Wa, “The Establishment and Early Development of Police System in Hong Kong.” 136  Kerrigan, “Policing a Colony,” esp. Chapter 4.

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Epistemologically speaking, essentialism eschews the diversification of analysis and divergent interpretation of matters. Carried too far, it obscures more than informs, distorts rather than illuminates, closes enquiry rather than generates questions. In context, and as applied to idealism, the likes of colonialism, nationalism and anti-foreignism fans the fire of essentialism, contributing to blindness and bias, both anathema to dispassionate, objective and scientific enquiry and the logical analysis of data. The challenge in studying colonial Hong Kong is thus in getting away from essentialist thinking and politically correct reactions to seek some other more contextual, circumstantial, situational and contingent, if mundane and routine, understanding of policing of the time, such as dominant personality or grounded politics. If we unshackle ourselves from the bondage of colonialism as a concept and practice, we soon find that the study of policing in colonial Hong Kong is much more interesting, exciting, colorful and multi-faceted than anti-colonialist scholars and nationalistic pundits would have us believe. In removing our presumptive anticolonialist blinders, we are invited to ask more searching questions of everyday life (not life as perceived or imagined, but life as lived, with contingences and consequences, with feelings, not only thinking) and to interrogate common people (not in the role of high officials but as persons caught in multiple role sets); to ask why did British and Chinese (human nature) think and act the way they did in a place called Hong Kong (geography), towards a people called Chinese (culture), at a time called the colonial era (history and politics) and for the purpose of conquest (war) or survival (economics). Elizabeth Sinn137 and other more discerning historians have led the vanguard in debunking the myths of colonialism and nationalism, in offering alternate narratives of how “colonized” Chinese lived, shaped and controlled Hong Kong, collaboratively with the British. In the process, they have begun to write a script of Hong Kong history from below (rather than above) and based on life as it was lived (rather than imagined); ultimately, experiencing historical moments more than thinking about historical grand design; more simply, feeling the tree, not imagining the forest, as history unfolds. Another problem with essentialist thinking is that it attributes a single meaning to or provides a limited interpretation of all events, situations, events, people. In such explanations British colonialists were deemed to think and act alike when it came to Hong Kong affairs, i.e., what might be called group think, a single mindset, unified action, or a zombie mentality—all concluding in robotic action. This critique recalls those of Marx on capitalism, Mao on feudalism, and Gandhi on colonialism. The truth, depending on the level and unit of analysis, may be untrue, half-truth (on some issues, at some time), mixed truth or irrelevant. As a belief system and political movement, colonialism (and with it imperialism) 137  Sinn, Power and Charity; Munn, Anglo-China; Hamilton, Watching Over Hong Kong.

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was differentially understood (there are many variants of colonialism), rendered, applied, received, perceived, impacted and felt; from the standpoints both of the colonizer and of the colonized.138 Take the case of the “dual track” legal system for Hong Kong. Anti-imperialists painted it as an example of discrimination and the badge of an enslaved people. But in truth, the “dual track” legal system was a practical attempt to deal with a real governance problem in colonial Hong Kong: What is the best—most fair and effective—way to provide justice for the Chinese, now under British rule? The answer, at least to Pottinger, was for the Chinese to live under the old system of control, as if nothing had changed. (Pottinger was later to change his mind and insist on a universal British rule of law.) That incidentally was what British nationals were afforded under the “extra-territorial” scheme in China, before the take-over of Hong Kong. In essence, the British were trying to create a fair and effective criminal justice system, not a discriminatory and colonial one. As to why Chinese officers were passed over in the staffing of the newly created police force under Caine, part of the reason had to do with trust. The British did not trust the Chinese. The mistrust was real given the contentious relationship between Britain and China—who were at war at the time—and the nationalistic and antiforeign fever inhabiting the Chinese people. Indeed, because of their strong feelings of nationalism and anti-foreignism, brought about by foreign conquest and the humiliation of China as a result of the Opium War, Chinese did not like serving the British. A more mundane reason, though, was that the recruitment of local Chinese was “almost altogether futile” (Colonial Office 1844). Traditionally, Chinese people did not like to serve as police officials, and considered it to be a debased—uneducated, abusive and corrupt—occupation. Finally, those who worked for the British were considered by the Chinese as “han jian” and subjected to Chinese sanctions.139

138  In building a house we need nails and wood. In constructing history we need ideas and concepts. In building a house we need sharp nails and strong boards. In constructing history we need sharp ideas and durable concepts. For an idea or concept to be useful, it must be articulated clearly with little permeability/leakage. Such quality hampers our ability to capture a world of interrelatedness and movement. 139  In this force, but the Governor, Sir Henry Pottinger, soon concluded that in the employment of Chinese police, Europeans were to be subject to English law while the Chinese were to be governed “according to the laws, customs and usages of China as nearly as may be (every description of torture excepted).” Caine was empowered to impose penalties of up to three months’ imprisonment, monetary fines and a maximum of 100 lashes with a rattan (Crisswell and Watson, The Royal Hong Kong Police).

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Appendix I Treaty of Nanjing (Nanking), 1842140 (Ratifications exchanged at Hongkong, 26th June 1843.)141 VICTORIA, by the Grace of God, Queen of the United Kingdom of Great Britain and Ireland, Defender of the Faith, etc., etc., etc. To All and Singular to whom these Presents shall come, Greeting! Whereas a Treaty between Us and Our Good Brother The Emperor of China, was concluded and signed, in the English and Chinese Languages, on board Our Ship the Cornwallis, at Nanking, on the Twentyninth day of August, in the Year of Our Lord One Thousand Eight Hundred and Forty-two, by the Plenipotentiaries of Us and of Our said Good Brother, duly and respectively authorized for that purpose; which Treaty is hereunto annexed in Original. TREATY Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, and His Majesty the Emperor of China, being desirous of putting an end to the misunderstandings and consequent hostilities which have arisen between the two Countries, have resolved to conclude a Treaty for that purpose, and have therefore named as their Plenipotentiaries, that is to say: Her Majesty the Queen of Great Britain and Ireland, HENRY POTTINGER, Bart., a Major General in the Service of the East India Company, etc., etc.; And His Imperial Majesty the Emperor of China, the High Commissioners KEYING, a Member of the Imperial House, a Guardian of the Crown Prince and General of the Garrison of Canton; and ELEPOO, of Imperial Kindred, graciously permitted to wear the insignia of the first rank, and the distinction of Peacock’s feather, lately Minister and Governor General etc., and now Lieutenant-General Commanding at Chapoo: Who, after having communicated to each other their respective Full Powers and found them to be in good and due form, have agreed upon, and concluded, the following Articles: ARTICLE I There shall henceforward be Peace and Friendship between Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, and His Majesty the Emperor of China, and between their respective Subjects, who shall enjoy full security and protection for their persons and property within the Dominions of the other.142 140  USC-UCLA Joint East Asian Studies Center, East Asian Studies Documents, http://www.international.ucla.edu/eas/documents/nanjing.htm (Visited March 26, 2012). 141  For a Chinese version, consult ; see footnotes 3 to 15, corresponding to Articles 1 to 13, Treaty of Nanking. 142  一、嗣後大清大皇帝與英國君主,永存平和,所屬華英人民,彼此友睦,各住他 國者,必受該國保佑, 身家全安。

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ARTICLE II His Majesty the Emperor of China agrees that British Subjects, with their families and establishments, shall be allowed to reside, for the purpose of carrying on their Mercantile pursuits, without molestation or restraint at the Cities and Towns of Canton, Amoy, Foochow-fu, Ningpo, and Shanghai, and Her Majesty the Queen of Great Britain, etc., will appoint Superintendents or Consular Officers, to reside at each of the above-named Cities or Towns, to be the medium of communication between the Chinese Authorities and the said Merchants, and to see that the just Duties and other Dues of the Chinese Government is hereafter provided for, are duly discharged by Her Britannic Majesty’s Subjects.143 ARTICLE III It being obviously necessary and desirable, that British Subjects should have some Port whereat they may careen and refit their Ships, when required, and keep Stores for that purpose, His Majesty the Emperor of China cedes to Her Majesty the Queen of Great Britain, etc., the Island of Hongkong, to be possessed in perpetuity by Her Britannic Majesty, Her Heirs and Successors, and to be governed by such Laws and Regulations as Her Majesty the Queen of Great Britain, etc., shall see fit to direct.144 ARTICLE IV The Emperor of China agrees to pay the sum of Six Millions of Dollars as the value of Opium which was delivered up at Canton in the month of March 1839, as a Ransom for the lives of Her Britannic Majesty’s Superintendent and Subjects, who had been imprisoned and threatened with death by the Chinese High Officers.145

143  二、自今以後,大皇帝恩准英國人民,帶回所屬家眷,寄居沒海之廣州、福 州、廈門、寧波、上海等五處港口,貿易通商無礙。英國君主派設領事、管事等官, 住該五處城邑,專理商賈事宜。與各該地方官公文往來,令英人按照下條開敘之例,清 楚交納貨稅、鈔餉等費。 144  三、因英國商船,遠路涉洋,往往有損壞須修補者,自應給予沿海一處,以便修 船及存守所用物料。今大皇帝准將香港一島,給予英國君主暨嗣後世襲主位者,常遠 主掌,任便立法治理。 145  四、因飲差大臣等於道光十九年二月間,將英國領事官及民人等,強留粵省, 嚇以死罪,索出鴉片,以為贖命。今大皇帝准以洋銀六百萬圓,補償原價。

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ARTICLE V The Government of China having compelled the British Merchants trading at Canton to deal exclusively with certain Chinese Merchants called Hong Merchants (or Cohong) who had been licensed by the Chinese Government for that purpose, the Emperor of China agrees to abolish that practice in future at all Ports where British Merchants may reside, and to permit them to carry on their mercantile transactions with whatever persons they please, and His Imperial Majesty further agrees to pay to the British Government the sum of Three Millions of Dollars, on account of Debts due to British Subjects by some of the said Hong Merchants (or Cohong), who have become insolvent, and who owe very large sums of money to Subjects of Her Britannic Majesty.146 ARTICLE VI The Government of Her Britannic Majesty having been obliged to send out an Expedition to demand and obtain redress for the violent and unjust Proceedings of the Chinese High Authorities toward Her Britannic Majesty’s Officer and Subjects, the Emperor of China agrees to pay the sum of Twelve Millions of Dollars on account of the Expenses incurred, and Her Britannic Majesty’s Plenipotentiary voluntarily agrees, on behalf of Her Majesty, to deduct from the said amount of Twelve Millions of Dollars, any sums which may have been received by Her Majesty’s combined Forces as Ransom for Cities and Towns in China, subsequent to the 1st day of August 1841.147 ARTICLE VII It is agreed that the Total amount of Twenty-one Millions of Dollars, described in the three preceding Articles, shall be paid as follows: Six Millions immediately. Six Millions in 1843. That is: Three Millions on or before the 30th of the month of June, and Three Millions on or before the 31st of December. Five Millions in 1844. That is: Two Millions and a Half on or before the 30th of June, and Two Millions and a Half on or before the 31st of December. Four Millions in 1845. That is: Two Millions on or before the 30th of June, and Two Millions on or before the 31st of December; and it is further stipulated, that Interest at the rate of 5 per cent. per annum, shall be paid by the Government of

146  五、凡英國商民,在粵省貿易,向例全歸額設商行亦稱公行者承辦,今大皇帝 准 其嗣後不必仍照向例,凡有英商等赴各該口貿易者,勿論與何商交易,均聽其便。且 向例額設行商等,內有累欠英商甚多,無措清還者,今酌定洋銀300萬元,作為商欠之數, 由中國官為償還。 147  六、欽差大臣等向英國居民人等,不公強辦,致須撥發軍士,討求伸理,今酌定 水陸軍費洋銀1200萬元.大皇帝准為補償。惟自道光二十一年6月15日以後,英國在各 城收過銀兩之數,按數扣除。

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China on any portions of the above sums that are not punctually discharged at the periods fixed.148 ARTICLE VIII The Emperor of China agrees to release unconditionally all Subjects of Her Britannic Majesty (whether Natives of Europe or India) who may be in confinement at this moment, in any part of the Chinese Empire.149 ARTICLE IX The Emperor of China agrees to publish and promulgate, under His Imperial Sign Manual and Seal, a full and entire amnesty and act of indemnity, to all Subjects of China on account of their having resided under, or having had dealings and intercourse with, or having entered the Service of Her Britannic Majesty, or of Her Majesty’s Officers, and His Imperial Majesty further engages to release all Chinese Subjects who may be at this moment in confinement for similar reasons.150 ARTICLE X His Majesty the Emperor of China agrees to establish at all the Ports which are by the 2nd Article of this Treaty to be thrown open for the resort of British Merchants, a fair and regular Tariff of Export and Import Customs and other Dues, which Tariff shall be publicly notified and promulgated for general information, and the Emperor further engages, that when British Merchandise shall have once paid at any of the said Ports the regulated Customs and Dues agreeable to the Tariff, to be hereafter fixed, such Merchandise may be conveyed by Chinese Merchants, to any Province or City in the interior of the Empire of China on paying a further amount as Transit Duties which shall not exceed per cent. On the tariff value of such goods.151 ARTICLE XI

148  七、以上酌定銀數,共2100百萬元,此時交銀600萬元,癸卯年6月間交銀300 萬元,12月間交銀 300萬元,共銀600萬元。甲辰年6月間交銀250萬元,12月間交銀250 萬元,共銀500萬元。乙巳年6月間交銀200萬元,12月間交銀200萬元,共銀400萬元。 自壬寅年起,至乙巳止,4年共交銀2100萬元。但按期未能交足,則酌定每年每100元應 加息5元。 149  八、凡系英國人,無論本國、屬國軍民等,今在中國管轄各地方被禁者,大皇 帝准即釋放。 150  九、凡系中國人,前在英國人所據之邑居住者,或與英人有來往者,或有跟隨 及伺候英國官人者,均由大皇帝俯降諭旨,謄錄天下,恩准免罪。凡系中國人為英國事 被拿監禁者,亦加恩釋放 151  十、前第二條內,言明開關,俾英國商民居住通商之廣州等五處,應納進口出口 貨稅、餉費,均宜秉公議定則例, 由部頒發曉示,以便英商按例交納。 今又議定, 英國 貨物,自在某港按例納稅後,即准由中國商人,遍運天下,而路所經過,稅關不得加重稅 例,只可照估價則例若 干,每兩加稅不過某分。

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It is agreed that Her Britannic Majesty’s Chief High Officer in China shall correspond with the Chinese High Officers, both at the Capital and in the Provinces, under the term “Communication” [Chinese characters]. The Subordinate British Officers and Chinese High Officers in the Provinces under the terms “Statement” [Chinese characters] on the part of the former, and on the part of the latter “Declaration” [Chinese characters], and the Subordinates of both Countries on a footing of perfect equality. Merchants and others not holding official situations and, therefore, not included in the above, on both sides, to use the term “Representation” [Chinese characters] in all Papers addressed to, or intended for the notice of the respective Governments.152 ARTICLE XII On the assent of the Emperor of China to this Treaty being received and the discharge of the first installment of money, Her Britannic Majesty’s Forces will retire from Nanking and the Grand Canal, and will no longer molest or stop the Trade of China. The Military Post at Chinhai will also be withdrawn, but the Islands of Koolangsoo and that of Chusan will continue to be held by Her Majesty’s Forces until the money payments, and the arrangements for opening the Ports to British Merchants be completed.153 ARTICLE XIII The Ratification of the Treaty by Her Majesty the Queen of Great Britain, etc., and His Majesty the Emperor of China shall be exchanged as soon as the great distance which separates England from China will admit; but in the meantime counterpart copies of it, signed and sealed by the Plenipotentiaries on behalf of their respective Sovereigns, shall be mutually delivered, and all its provisions and arrangements shall take effect.154 Done at Nanking and Signed and Sealed by the Plenipotentiaries on board Her Britannic Majesty’s ship Cornwallis, this twenty-ninth day of August, 1842, corresponding with the Chinese date, twenty-fourth day of the seventh month in the twenty-second Year of TAOU KWANG.

152  十一、議定英國住中國之總管大員,與中國大臣,無論京內京外者,有文書來 往,用照會字樣,英國屬員,用申陳字樣,大臣批復,用札行字樣。兩國屬員往來,必當平 行照會。若兩國商賈上達官憲,不在議內,仍用奏明字樣。 153  十二、俟奉大皇帝允准,和約各條施行,並以此時准交之600萬元交清,英國 水陸軍士,當即退出江寧、京口等處江面,並不再行攔阻中國各省商賈貿易。至鎮海 之招寶山亦將退讓。惟有定 海縣之舟山海島,廈門廳之鼓浪嶼小島,仍歸英兵暫為駐 守,迨及所議洋不復佔據。 154  十三、以上各條,均關議和公約,應俟大臣等分別奏明大皇帝御筆批准,及英 國君主判定後,即速相交,俾兩國分執一冊,以昭信守。惟兩國相離遙遠,是以另繕二 冊,先由欽差大臣等及英國公使,蓋用關防印.各執一冊為據,俾即日按照和約開載之 條,施行妥辦。

Policing Hong Kong: The Early Years

49

Appendix II Noteworthy Events: 1841 to 1997 in Hong Kong155 1841 1842 1843 1845 1846 1852 1856 1857 1858 1860 1862 1863 1865 1867 1870 1871 1884 1895 1898 1899 1900 1910 1911 1912 1918 1922 1925 1930 1931 1936 1937 1938

British landed in Hong Kong, first land sale Treaty of Nanking confirms cession of Hong Kong to Britain Royal Charter proclaims Hong Kong as a separate colony. First Governor appointed P&O commence monthly mail route Hong Kong Club opens Taiping refugees arrive from China Ginger and coffee farms promoted Arrow War with China. 500 Europeans poisoned by arsenic from a bakery Treaty of Tientsin legalizes opium sales in China Kowloon and Stonecutters Island are leased to Britain in perpetuity Battle of Tsim-Sha-Tsui between local Punti and Hakka tribes Jardine, Matheson lay first telegraph lines within colony. Silver dollars issued Hong Kong and Shanghai Bank founded Chinese blockade Hong Kong Hong Kong to Amoy to Shanghai cable operational Hong Kong to Singapore cable operational Riots in response to Sino-French War. Hong Kong Jockey Club formed 20,000 coolies strike over lodging house regulations New Territories leased to Britain for 99 years Local Chinese oppose British take over. Chinese magistrate and militia expelled from Kowloon Boxer Rebellion. Hong Kong serves as base for Allied forces All opium divans closed. First car arrives in Hong Kong First flight in Hong Kong Attempted assassination of Governor Fire at Happy Valley Racecourse. 600 are killed Royal visit of HRH Edward Guangzhou-Hong Kong strike until 1926 First commercial flights Anti-Japanese riots Imperial Airways flying boat carries airmail from Britain to Hong Kong Japanese land in New Territories en route to Shenzhen Fall of Shenzhen. Japanese cruiser Myoko visits Hong Kong

155  The British Empire – Hong Kong http://www.britishempire.co.uk/maproom/ hongkong.htm (Visited March 26, 2012).

50

1939 1940 1941 1942 1943 1944 1945 1946 1948 1949 1950 1952 1965 1967 1972 1974 1980 1982 1984 1986 1987 1989 1997

Policing in Hong Kong

More Anti-Japanese riots. Conscription for British subjects. Volunteer forces strengthened General Norton takes control from civilians Japanese invade Hong Kong Lt General Rensuke Isogai becomes Japanese Governor Japanese rebuild government house Seven British civilians beheaded for possessing a radio Japanese surrender Civilian government restored UK ends control over Hong Kong finances Chinese communists reach Hong Kong border Immigration controls on Chinese British abandon political reform Large influx of American service personnel due to Vietnam War Five Hong Kong police shot dead by Chinese PLA troops at border Vietnamese boat people begin to arrive Anti-Corruption Commission formed. Hong Kong Dollar floated “Touch Base” policy of allowing illegal Chinese to remain in Hong Kong ends Thatcher visits Beijing to discuss Hong Kong’s future Sino-British Joint Declaration signed by Thatcher Queen visits colony British National (Overseas) Passport introduced Tiananmen Square massacre Hong Kong returned to China

Chapter 2

Policing Hong Kong Police Power tends to corrupt, and absolute power corrupts absolutely. Lord Acton (1887)

Introduction The concern with and desire for police accountability1 is as old as the police itself as a governing institution.2 Sir Robert Peel, father to the “new police,”3 spent much 1  Anonymous, “Police Accountability: It’s a Fair Cop?,” The Economist, February 26, 1994. (Raising the issue once again whether police should be accountable locally or nationally. Since 1843, Britain’s regional forces have been held accountable to the Home Secretary as well as local police authorities. Increasingly, there is a movement to nationalize the police.) For a discussion of an emerging police accountability problem, i.e. private police accountability, see Stark Andrew, “Arresting Developments: When Police Power Goes Private,” American Prospect, February 1999, pp. 41–8. (How should we come to terms with public (moonlighting) police officers using private police power to enforce the law.) For recent articles on police accountability in professional journals, see Richard J. Johnson, “Citizen Complaint: What the Police Should Know,” FBI Bulletin, 67(12) (1998): 1–5. (Studies in Florida, Illinois, Pennsylvania and Washington show that most complaints (about 50 percent) were about police rude and inappropriate statements. One quarter involved excessive force. One half deals with police on-site intervention. The majority of complaints were not substantiated, i.e., less than one third. Citizens were as unsatisfied with a civilian investigation as a police one, but they prefer a citizen review. Young, unmarried, low-income males file most complaints. Male officers under 30 years of age, with less than five years’ police experience and a high-school education suffered most from complaints); Peter Finn, “Getting Along with Citizen Oversight,” FBI Bulletin, 69(8) (2000): 22–7. (Since the 1990s, more and more police agencies in the US have found citizen oversight helpful to their cause, e.g., improving public image, quality of internal investigation and police policy and procedure); Jon Arnold, “Internal Affairs Investigation: The Supervisor’s Role,” FBI Bulletin, 67(1) (2000): 11–16. (Supervisors conducting internal investigations play a crucial role in maintaining professionalism and integrity of the police agency.) 2  Concerns with abuse of power are as old as policing itself. See James Morton, Bent Copper (London: Warner Books, 1999), Chapter 1. (“As early as 1601 justices had become known as basket-justices following an attack by a Member of Parliament who said that many of them carried a basket for reception of gifts from those who came before them … nightwatchmen …sniffed out those who could pay money to avoid arrest and prosecution” (p. 4).) 3  It is now common to refer to the Metropolitan Police Act of 1829 (“An Act for Improving the Police in and Near the Metropolis”) as “the” legislation to usher in the modern professional police. This is not quite correct. “Modern police history begins not in

52

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time and effort in convincing the British people that the creation of a centralized and specialized police force would pose no threat to their constitutional rights and civil liberties.4 An English parliamentary committee which had reported on Peel’s earlier proposal stated: “a forfeiture or curtailment of individual liberty which the creation of an effective police system would bring with it would be too great a sacrifice on behalf of improvements in police or facilities in detection of crime.”5 In the United States, August Vollmer6 and O.W. Wilson, pioneers of professional policing, introduced professionalism to guard against political corruption and the abuse of police power.7 In the People’s Republic of China, Chairman Mao, Britain itself but in Ireland, with the passing of Irish Peace Preservation Act in 1814, when Peel was Irish Secretary.” See C. Jefferies The Colonial Police (London: Max Parrish, 1952), p. 53. 4  Clive Emsley, The English Police: A Political and Social History, 2nd edition (London and New York: Longman, 1991), esp. Chapter 2. (The people were much concerned with the institutionlization, centralization and concentration of police power. For example, much of the early criticism of the proposed “new police” was focused on its military characteristics that reminded the Britons of the French gendarmerie who were not known for their respect for civil liberties or public accountability (p. 26)). See also William Watts, “Party Politics, Class Interest and Reform of the Police, 1829–56,” Police Studies, 10 (1987): 42–9, 42. (There were well found concerns that the new police would be expensive, inefficient, coercive and not amenable to local control.) Kenneth J. Peak and Ronald W. Glensor, Community Policing and Problem Solving (Upper Saddle River, NJ: Prentice-Hall, 1996). (“Peel was denounced as a potential dictator; the London Times urged revolt; and Blackwood’s Magazine referred to the bobbies as ‘general spies’ and ‘finished tools of corruption.’ A national secret body was organized to combat the police, who were nicknamed the ‘Blue Devils’ and the ‘Raw Lobsters’” (p. 3).) 5  Charles Reith, British Police and the Democratic Ideal (London: Oxford University Press, 1943). 6  Nathan Douthit, “August Vollmer, Berkeley’s First Chief of Police, and the Emergency of Police Professionalism,” California Historical Quarterly, 54 (1975): 101– 24. (Vollmer turned Berkeley into a unique model of professionalism. He joined the police as an outsider in a Progressive Era when there was growing public interest to reform the police to rid it of corruption, abuse and discrimination. Vollmer introduced mobile policing (first on bike and later with automobile), the red light system at street corners, a file system of criminals’ modus operandi, scientific theory in policing, police schools, rigid entry requirements and scientific screening processes, lie detector tests for detectives and radio communication systems for patrol cars); Gene Edward Carte, “August Vollmer and the Origins of Police Professionalism, “Journal of Police Science and Administration, 1 (1973): 274–61. For a more detailed treatment, see Alfred E. Parker, The Berkeley Police Story (Springfield, IL: Charles C. Thomas, 1972). For a more personal account, see August Vollmer: Pioneer in Police Professionalism (Regional Oral History Office, The Bancroft Library, University of California at Berkeley, 1972). For a personal reflection, August Vollmer, “Police Progress in the Past Twenty-Five Years,” Journal of Criminal Law and Criminology, 24 (1933): 161–75. 7  Robert Fogelson, Big-City Police (Cambridge, MA: Harvard University Press, 1977), especially Chapter 6: “The Professional Model”; Samuel Walker, History of Police

Policing Hong Kong Police

53

the founder of modern China, zealously indoctrinated the “people’s police” to be ideological pure and to be responsive and responsible to the masses,8 and Xiaoping Deng, the father of reformed China, later ambitiously introduced the “rule by law” to hold police accountable to the communist political ideal of serving the people. Police abuse of power has been extensively studied in the US,9 UK,10 Canada,11 Amsterdam,12 Australia,13 China14 and other parts of the world.15

Reform: The Emergence of Professionalism (Lexington, MA: DC. Heath and Co., 1977). See also Philip John Stead, Pioneers in Policing (Maidenhead: McGraw-Hill, 1977). 8  Luo Ruiqing, Lun Renmin Gongan Gongzuo (A Treatise on People’s Police Work) (Beijing: Qunzhong chubanshe, 1994). (Mao’s famous admonition was “from the masses to the masses.”) 9  For a review of literature, Lawrence W. Sherman “The Causes of Police Behavior: The Current State of Quantitative Research,” Journal of Research in Crime and Delinquency, 17(1) (1980): 69–100; Eric C. Riksheim and Steven M. Cermak, “Causes of Police Behavior Revisited,” Journal of Criminal Justice, 21 (1993): 353–82. For a representative study, see William A. Geller and Hans Toch, eds, Police Violence: Understanding and Controlling Police and Abuse of Force (New Haven, CT: Yale University Press, 1996). 10  For a review of literature, see Robert Reiner, “Policing and the Police,” in Mike Maguire, Rod Morgan and Robert Reiner, eds, The Oxford Handbook of Criminology, 2nd edition (Oxford: Oxford University Press, 1997), pp. 997–1049. For a representative study, see S. Holdaway, “Occupational Culture of Urban Policing: An Ethnographic Study,” Doctoral dissertation, University of Sheffield (1980). 11  For a review of literature, see Clifford D. Shearing, F. Jennifer Lynch and Catherine J. Matthews, Policing in Canada: A Bibliography (Toronto: Centre of Criminology, University of Toronto, 1970). For a representative study, see R. Erickson Reproducing Order: A Study of Police Patrol (Toronto: University of Toronto Press, 1982). 12  For a review of literature, see M. Punch, Conduct Unbecoming: The Social Construction of Police Deviance and Control (London: Tavistock, 1985). For a representative study, see M. Punch, Policing in Inner City (London: Macmillan, 1979). 13  For representative studies see Ian Freckelton and Hugh Selby, “Piercing the Blue Veil: An Assessment of External Review of Police,” in Duncan Chappell and Paul Wilson, eds, Australian Policing (Sydney: Butterworths, 1989) and R.W. Harding, Police Killings in Australia (Victoria: Penguin Books, 1980). 14  For a review of literature, see Kam C. Wong, “Police Powers and Control in the PRC: The History of Shoushen,” Columbia Journal of Asian Law, 10(2) (Fall 1996): 367– 90. 15  M. Brogden and C. Shearing, Policing for a New South Africa (London: Routledge, 1994); A. Wright and R.C. Mawby, “Civilian Oversight of Policing in Transitional States: The Case of Hungary,” International Journal of the Sociology of Law, 27(4) (1998): 335– 50; Anthony Harriot, “Policing Styles in the Commonwealth Caribbean: The Jamaican Case,” Caribbean Journal of Criminology and Social Psychology, 3(1/2) (1998): 60–82; Douglas M. Peers, “Torture, the Police, and the Colonial State in the Madras Presidency 1816–55,” Criminal Justice History, 12 (1991): 30–56; Christopher Birkbeck and Gerado Luis Gabaldon, “The Effect of Citizens’ Status and Behavior on Venezuelan Police Officers’ Decision to Use Force,” Police and Society, 8(3) (1998): 315–38; Kam C. Wong, “Policing

54

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The Hong Kong Police (HKP) possess expansive, pervasive and awesome powers and as such have great influence over the life of Hong Kong. They are present in people’s lives every minute of the day, by acting assertively—e.g., aggressive Police Tactical Unit stop and searches—or failing to act passively— e.g., refusal to intervene in domestic disputes. When the HKP intervene in citizens’ lives, they often do so unexpectedly and uninvited; at times forcefully and at others slowly. This creates anxiety for those citizens confronted by the police. Of course, the police can be just as annoying and frustrating when they fail to exercise their power. For example, the HKP have consistently refused to act on complaints made about intimidation perpetrated by “loan sharks,” claiming it is a private dispute and a civil case.16 More regularly, most people in Hong Kong experience being held up in traffic when they are late for work only to find the traffic police standing by doing nothing. Besides criminal law powers, the HKP have extensive administrative law powers, e.g., to license bars and to issue closed area permits. The latter are issued by the police to people wishing to visit closed or restricted areas such as the border area between the mainland and Hong Kong.17 As many people in Hong Kong have to visit the border area to show respect to their parents during the Ching Ming Festival,18 the permit system affects large numbers. In one case, a friend of mine wanted to visit his family’s grave in Lok Ma Chau (a border village) accompanied by his disabled parent. But whether my friend and his parent could visit his grandfather’s grave ultimately came down to the police’s decision on whether to issue the permit or not! Clearly people become frustrated if their applications in such circumstances are denied. The HKP can of course make the application process more or less elaborate or troublesome for the applicants as they deem fit; all with great consequence to police–public relations. Until recently (after 1997), the HKP has been held in universal contempt and subject to perennial complaints. The Colonial mandate, the executive form of government, the para-military structure and the authoritarian personality of the police further contributed to the making of a detached, aloof, coercive and abusive force, before the arrival of professional and community policing in Hong Kong.19 In the early years, the HKP lived off the earnings of the underworld with impunity and adopted draconian measures to keep disorderly people in place as a matter of course. the Hong Kong Police,” paper delivered on July 6, 2000 at British Society of Criminology Conference, University of Leicester, England. 16  Personal information, SIP CCB, HKP, November 1999. 17  A one mile buffer zone separating the mainland and New Territories; a part of Hong Kong. 18  A time of the year where Chinese people by tradition go to pay tribute to their ancestors at their graves. 19  Carlos Lo and Albert Cheuk, “Community Police in Hong Kong: Development, Performance and Constraints,” Policing, 27(1) (2004): 97.

Policing Hong Kong Police

55

Power attracts abuse, and the HKP has a long history of being associated with police abuse, dating back to the colonial days when corruption was accepted, coerced confessions were routine and beating up criminals was a way of life.20 In those days, the police were referred to by some locals as “licensed thugs” (有牌爛仔).21 As observed by Criswell and Watson, eminent HKP historians: for the first few years Hong Kong was a dangerous and lawless place. The restless and rootless Chinese immigrants were the main cause … before long there developed a European sub-culture of discharged sailors and soldiers. Ship-jumpers, beachcombers … it was from this class that the authorities were obliged to recruit many of the first policemen.22

As to Chinese police officers, before 1997 their ranks were infested with Triad Society members.23 Abuses call for remedies. In the 1990s Hong Kong recorded about 3,000–4,000 complaints against the police each year. Consistently, 50 percent or more of the complaints were about police assault. HKP CAPO (Complaints Against Police Office) and IPCC (Independent Police Complaints Council) statistics showed that each year only a small proportion of cases against the HKP were substantiated and sanctioned. The substantiated24 rate was 2.9 percent in 1995, 2.2 percent in 1996 and 3.8 percent in 1997.25 Criminal prosecution resulted only in 23 cases in 1995, seven cases in 1996 and eight cases in 1997.26 This has led the UN to observe:

20  “HKP has 413 Pathological Monsters” (香港警察部內有413變態狂魔), February 25, 2010, . (Documenting 413 instances of HKP illegal, unethical, immoral and unprofessional conduct which has brought the HKP into disrepute, from 2005 to 2010.) 21  The author served with the HKP in the late 1960s to early 1970s, and now serves as a HKP trainer and consultant. It is an open secret that triad members infested the rank and file of the HKP, at least before 1997. The movie The Departed (1996) was based on a Hong Kong movie script exploring this “possibility.” See http://www.imdb.com/title/tt0407887/ (Visited March 26, 2012). 22  Colin Crisswell and Mike Watson, The Royal Hong Kong Police (1841–1945) (Hong Kong: Macmillan, 1982), p. 10. 23 Ibid. Cheung Hin Kwan v. Commissioner of Police and Another, [2006] HKCA 42; CACV000370/2004, February 10, 2006 (Cheung appeal against HKP discipline for associating with triad members). 24  “Where there is sufficient reliable evidence to support the allegation made by the complainant.” 25 IPCC, Report of the Independent Police Complaints Council (1997), Appendix XI, p. 4. 26  Ibid., Appendix XIV.

Policing in Hong Kong

56

In light of the high proportion of complaints against police officers which are found by the investigating police to be unsubstantiated, the Committee expresses concern about the credibility of the investigation process and takes the view that investigation into complaints of abuse of authority by members of the Police Force must be, and must appear to be, fair and independent and must therefore be entrusted to an independent mechanism.27

During 2000s, the IPCC reported an increase in reported complaints (allegations) and substantiation rates (on allegations). Tables 2.1 and 2.2 indicate that the total allegations increased from 4,341 in 2007 to 7,952 in 2010, and the substantiation rate increased from 8.9 percent in 2007 to 13.7 percent in 2010. This suggests that the IPCC is becoming more effective as a monitoring agency. Table 2.1

Total Allegations and Substantiation Rates: 2007–2010 2007

2008

2009

2010

Allegations

4,341

4,523

5,056

7,952

Substantiation

8.9%

11.1%

14.2%

13.7%

Source: IPCC, Annual Report (2010)

Turning to the main focus of this chapter, what can an average citizen in Hong Kong do in the face of police misconduct or mistreatment? How can a citizen right a wrong? What can a citizen do when the traffic police stop his/her lane longer than other lanes for no apparent reason? Where can a person seek redress when the police decide not to answer her emergency call because of a “weak” signal and “inaudible” voice, the result of which is her husband drowns?28 In essence, when police exercise their legally allowed discretion, there is very little citizens can do to hold them accountable other than to trust that the police do their job correctly in most instances in a legal and professional manner. Finding the remedy for police abuse requires knowing the cause. In the context of Hong Kong, partly as a result of authoritarian Chinese culture and partly because of dominating British colonial rule, the HKP have always exercised wide-ranging and unrestricted powers. Culturally, in traditional China, the concept of rule by law as promoted by the legalists in the Qin dynasty (247–221 BCE) was never a dominant feature of Chinese imperial governments. Until very recently, Confucian ethics—social status, hierarchical relationships and an ethical code of behavior— 27  United Nations Human Rights Committee, “Concluding Observations of the Human Rights Committee (Hong Kong): United Kingdom of Great Britain and Northern Ireland,” November 9, 1995, CCPR/C/79/Add.57. 28  This is a real case. A foreigner was drowned. His wife called the police by dialing 999, only to have the phone hung up on her numerous times.

Policing Hong Kong Police

Table 2.2

57

Nature of Allegations Endorsed by IPCC and Substantiation Rates: 2007–2010

Allegations

2007

2008

2009

2010

Assault

587

538

436

578

Misconduct/Improper Manner/ Offensive Language

1,539

1,520

1,935

2,919

Neglect of Duties

1,551

1,675

1,997

3,486

Unnecessary Use of Authority

277

360

267

426

Fabrication of Evidence

146

172

173

185

Threat

227

238

231

321

Police Procedure

10

17

10

23

Other Offences

4

3

6

14

4,341

4,523

5,055

7,952

100

123

154

267

5

5

15

68

Unsubstantiated

769

754

597

1,290

False

160

179

222

179

No Fault

148

98

206

628

1,510

1,595

1,771

2,604

Not Pursuable

722

818

1,057

1,474

Informally Resolved

926

951

1,027

1,425

Total Allegations Substantiated/ Sub. Other Than Reported Not Fully Substantiated

Withdrawn

Curtailed Substantiation Rate (Fully Investigated)

–

–

6

9

8.9%

11.1%

14.2%

13.7%

Source: IPCC, Annual Report (2010)

guided the operations of society as a whole.29 Due to the political necessities of colonial rule and Hong Kong’s special political circumstances, law enforcement 29  S.K. Lau and H.C. Kuan, The Ethos of the Hong Kong Chinese (Hong Kong: Chinese University Press, 1986), p. 4.

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agencies in Hong Kong, especially the police, have always enjoyed immense power of social control with few guidelines and still fewer restrictions.30 This has inevitably led to police abuse of power. For example, we are told by retired HKP officers that, in earlier years, police officers in Hong Kong could shoot at will and destroy people’s property without ever being held accountable to anyone.31 In fact, annual police reports from before the 1960s suggest that there was no police abuse of power in Hong Kong.32 It is against this background that people in Hong Kong began to worry about unrestricted and unsupervised police powers. At a more theoretical level, people’s concern over police power was driven by two main considerations— one pragmatic, the other ideological. Pragmatically, people observed that power corrupts and absolute power corrupts absolutely. Increasingly, as a result of the changeover of political sovereignty from the British to the PRC, the Hong Kong people have become more sensitive to the corruption of power in Hong Kong.33 Ideologically, after 1997, the people of Hong Kong believed that in a democracy the police should be held accountable to the people and, in a rule of law regime, the police—as law enforcement agents—should abide by the law.34 It was Sir Robert Peel who first observed: “Police, at all times, should maintain a relationship with the public that gives reality to the historic tradition that the police are the public and the public are the police ….” 30  Hong Kong Human Rights Commission, Hong Kong Human Rights Report 1993 (Hong Kong: Hong Kong Human Rights Commission, 1993), “Chapter 2: The Abuse of Power by Law-enforcing Agencies.” 31  Kenneth Walter Andrew, Hong Kong Detective (London: John Long, 1962). 32  I still recall one time (in 1969) when I was a young police inspector with the Royal Hong Kong Police, I instructed my sergeant to clear all the illegally parked vehicles along Lai Chi Kok Road to make way for a VIP visit the next morning. The time allotted (six hours) was not enough to have tow trucks tow every vehicle away properly. The sergeant enlisted the help of some “experts” who tampered with the locks and drove the vehicles to the pound one by one. Many cars were slightly damaged in the operation, e.g., scratched. Only one owner complained, however. I gave the owner some money out of my pocket to replace the lock. I am still amazed at how few people complained about this most efficient but improper road clearance operation! 33  The fear of corruption of power in Hong Kong is real, though some say exaggerated and not supported by evidence. However, in politics, perception holds sway over reality. The symbolic interaction tradition teaches that what is perceived as real is real in consequence. The fear of corruption of power in Hong Kong comes from three quarters: intervention from mainland China, assimilation of PRC culture and abuse of power by the Hong Kong officials. 34  This position is most forcefully asserted by the Hong Kong Human Rights Commission. There are two political forces driving the police accountability movement in Hong Kong: democratization of the Hong Kong political process and autonomy of the Hong Kong administration. In the process of change over, the former calls for more external control, the latter cries out for more internal discipline.

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59

While the need for police accountability is accepted without much debate, determining the extent and manner of control is more problematic. First, to what extent should the police be held accountable? For example, should the police be allowed a “free hand” in the fight against foreign spies and domestic terrorists? The now disbanded Special Branch of the HKP, for example, had much more latitude in operational matters in their effort to fight Communist spies and KMT (Kuomintang) agents, leading occasionally to charges of abuse of human rights. According to ex-Special Branch officer Lo Ah, the procedure of detention and interrogation of spies compared to that for common criminals differed in three major ways: spies were not subject to the 48-hour rule before appearing in court, interrogations were not subject to the Judges Rule, and there was no legal representation. The whole objective was to break the prisoner physically and spiritually in order to secure confession and/or intelligence.35 This example of HKP policing methods raises some of the most difficult and controversial questions: whether, in what way and why spies and terrorists are treated differently than common criminals.36 The answer—as spelled out in broad philosophical terms, concrete organizational policy or refined operational rules—should help in creating a framework whereby all police conduct can be judged. For example, if one thinks that the end always justifies the means, one will probably support the Special Branch. If one believes that the end sometimes justifies the means, one will probably view the riot police using more force with less discrimination during riots, thereby risking some innocent lives to secure order, as an inevitable, albeit regrettable, scenario. If one believes that the end never justifies the means, as human rights activists or rule of law advocates do, one probably believes that there are fundamental principles that the police should follow—at all times, with all people, in all cases and under all circumstances. This is the chronic debate that pits a relativistic particularistic-situational approach against an absolute universal justice approach.37 Second, to whom should the police be accountable? Should the police be accountable to the state or the people? In a totalitarian regime (Soviet Russia) or dictatorial state (Nazi Germany), police answer to the dominant political authority. In present-day democracies, on the other hand, police are made to answer to the people. The idea of “people’s rule” or, more appropriately, “community accountability” only begins to but does not completely resolve the question of what people and which community—e.g., poor vs. rich, mainlanders vs. Vietnamese vs. 35  Lo Ah, Memories of Special Branch, RHKP (Hong Kong: Chinese University Press, 1997), pp. 41–2. 36  Police all over the world have different procedures for dealing with spies and terrorists. The most explicit case is that of Israel. Mao (On Contradiction, 1937) openly championed a different treatment of enemies of the state, e.g., counter-revolutionaries and misguided citizens. 37  Rod Morgan, “The Utilitarian Justification of Torture: Denial, Desert and Disinformation,” Punishment and Society, 2(3) (2000): 181–96.

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Hong Kong residents—should ultimately have the say over what the police should do.38 This has always been a problem in capitalistic societies (e.g., rich vs. poor), as in multi-ethnic (e.g., Chinese vs. Indian) and multi-cultural states (e.g., straight vs. gay). For example, in the remote island of Cheung Chau in Hong Kong, the police have to mediate cultural differences and personal disputes between and among transplanted foreigners (Hong Kong-Chinese and expatriates) and indigenous local residents over behavior codes, e.g., how stray dogs are treated. Third, for what conduct should the police be accountable? For example, should the police be held accountable for their political speech? For their private or off-duty conduct? Of late, the HKP, as a part of their organizational reform process, have asked officers to lead a healthier lifestyle. Some officers think the well-meaning reform initiative resembles the Communist drive of the early 1950s for ideological and spiritual purity in China. As a practical matter, officers have openly challenged the HKP leadership in its organizational campaign against excessive gambling. The officers argued, not without reason, why they should be expected to play by different conduct rules and adopt different moral codes when the whole of Hong Kong engages in a gambling craze that stretches from tom.com (tom-dot-com) subscription to real estate speculation by blind investors hoping for a quick return everyday.39 Fourth, to what standard or norm should the police be held accountable? Should the police follow legal rules or community norms or professional standards or personal ethics? These standards are not one and the same. Actually, the dilemma in China has always been whether the public security administration should follow the Communist Party ideology enshrined in the Constitution or the will of the people (the masses) expressed in local communities. For example, many good officers have used their professional judgment not to arrest and charge juveniles because that would have ruined the youth’s career prospects.40 The “Superintendent Discretionary Scheme” has formalized this process. It should come as no surprise that in Hong Kong, as elsewhere, police abuse of power has given rise to occasional outcries in the press and perennial debate in the public arena—in the media or Legislative Council. The question being asked is who is policing the police? Legislative Council Member Ho Sai-chu asked the Secretary for Justice: Will the government inform this Council of: (a) the number of complaints received by the Complaint Against Police Office about people being treated with 38  Robert C. Trojanowicz and Mark H. Moore, The Meaning of Community in Community Policing (East Lansing, MI: National Center for Community Policing, 1998). 39  Personal information. SIP, CID from Hong Kong Island, May 1999. 40  I personally released a form seven student caught stealing when I was satisfied that he was a good student with a clean record and that he was leaving in six months to study in the US. I often wonder what would have happened to him if I had arrested him “according to the law.”

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violence by police officers during detention at police stations in each of the past three years, and the number of substantiated cases; and (b) the measures in place to prevent the occurrence of such incidents?41

Policing the police in Hong Kong is not easy. The effort is hampered by uncooperative citizens, defensive police and disagreement over the philosophy on police–public relationships. The difficulties in policing the HKP begin with the public’s reluctance to get involved. Before 1997 the public was generally ignorant of their rights. They also did not know what to do when being abused; specifically how to lodge a complaint against the police. Nowadays they will certainly ponder the pros and cons of filing a complaint, or not. Is it worth one’s while to report to the CAPO or complain to the IPCC? Poor people are generally too timid to complain. The well-to-do are too busy. The negative consequences of filing a complaint also need to be considered, particularly when one has a professional and recurring relationship with the police, e.g., as one of the chronic poor (street people), a habitual criminal or a professional taxi driver.42 More probably, a citizen will think twice before complaining because the police are likely to have levied cover charges against them, from obstruction of justice to resisting arrest. More pragmatic considerations await: what is a complainant going to get in return for reporting abusive police, other than perhaps a letter of apology? For example: The complainant was arrested for “Theft” at the junction of ABC and XYZ Street. He lodged a complaint with the duty officer that he was assaulted by three unidentified plainclothes police officers inside the police station. He was immediately examined. Later, he rang up CAPO and requested to withdraw the complaint. He stated that he did not want to waste time pursuing the matter.43

Thus, it should come as no surprise that the majority of cases are either withdrawn or not pursuable—61.2 percent in 1995, 57.6 percent in 1996 and 47.7 percent in 1997.44 In 2010, about a third of the allegations—2,604 out of 7,952— were withdrawn. One of the recurring issues with policing the police is how to investigate police abuse of power properly. In Hong Kong, investigating the police has always been conducted by the police themselves—by Sub-Division Inspectors (SDIs) before 1973 and by CAPO since then. This has led to charges of a lack of openness, 41  Hong Kong SAR Government, “LCQ 8: Complaints Received by CAPO,” Press Release, Wednesday, April 21, 1999. 42  How to settle disputes between people who have prior or future relationship is an interesting subject to explore. Resolution of complaints will be different between strangers’ complaints and relations’ complaints. 43 IPCC, Report of the Independent Police Complaints Council (1997), Appendix, p. 4. 44 Ibid.

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objectiveness and fairness in the complaints against police system and process. Hong Kong citizens might have a point. CAPO and IPCC statistics show—year in and year out—that only a small proportion of cases is substantiated. Indeed, the Substantiated45/Substantiated Other Than Report46 rate was 2.9 percent in 1995, 2.2 percent in 1996 and 3.8 percent in 1997.47 Even when cases are substantiated police officers are rarely punished with the full force of the law. For substantiated cases, only 23 resulted in criminal prosecution in 1995, seven in 1996 and eight in 1997.48 The situation has not been that much better since 1997. Table 2.3 reveals that from 2007 to 2010 (1st quarter) only 28 officers out of a total of 538 who were found to be guilty of wrongdoing received some form of punishment: 25 faced disciplinary action and three were made subject to criminal prosecution. Table 2.3

Police Action Taken Against Defaulting Officers by HKP: 2006– 2010 (1st Quarter)

Year

Criminal Proceedings

Disciplinary Action

Warning

Advice

Total

2007

1

10

3

104

118

2008

2

4

6

135

147

2009

0

9

12

151

172

2010 (1st Q)

0

2

17

82

101

Source: IPCC, Annual Report (2010), Appendix IV

This creates a credibility and legitimacy problem for the police. Moreover, it does not inspire confidence in the public, however rigorous the investigation process. However, the HKP openly object to civilian investigation of police misconduct because they feel that people do not understand the police, are not capable of investigating the police, or are not able to pass judgment on police conduct. Furthermore, they argue that public monitoring of their work lessens their effectiveness in dealing with crimes and criminals. As might be expected, 45  “Where there is sufficient reliable evidence to support the allegation made by the complainant.” 46  “Where matters other than the original allegation have been identified (such as breach of internal discipline or failure to observe police orders and regulations) and are found to be substantiated. Such matter, however, must be closely associated with the complaint itself.” 47 IPCC, Report of the Independent Police Complaints Council (1997), Appendix XI, p. 4. 48  Ibid., Appendix XIV.

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however, citizens object to a police investigation process that is neither transparent nor independent. Lastly, even if people agree that the police need to be supervised and to be held accountable, there is still unending debate on how that should be done effectively without compromising the rights of the police officer, the expectations of the public, the morale of the police force, the effective enforcement of the law and the mission of the police. There is certainly debate over what or whose standard the police are being held accountable to—the law, public morality, personal ethics, community demands, political pressure? This chapter examines HKP power, its proper exercise and effective control, i.e. police accountability. It will variously touch on the subject of police legal authority, public accountability and various legal, political and administrative control measures. The chapter is organized into four sections: I. Hong Kong Police Powers: An Overview; II. Varieties of Complaint against the Police System: CAPO and IPCC; III. Patterns of Police Abuse of Power in Hong Kong; IV. Conclusion: A Preliminary Assessment. I. Hong Kong Police Powers: An Overview Hong Kong Police Responsibilities The HKP are vested with the power to discharge 19 duties from maintaining law and order to the licensing of premises.49 The legal mandate of the HKP is to take “lawful measures” to: (a) preserve the public peace, (b) prevent and detect crimes and offenses, (c) prevent injury to life and property, (d) apprehend all persons whom it is lawful to apprehend and for whose apprehension sufficient grounds exist, (e) regulate processions and assemblies in public places or places of public resort, (f) control traffic upon public thoroughfares and remove obstructions therefrom, (g) preserve order in public places and places of public resort, at public meetings and in assemblies for public amusements, for which purpose any police officer on duty shall have free admission to all such places and meetings and assemblies while open to the public, (h) assist coroners in discharging their duties and exercising their powers under the Coroners Ordinance (Cap 504), (i) assist in carrying out any revenue, excise, sanitary, conservancy, quarantine, immigration and alien registration laws, (j) assist in preserving order in the waters of Hong Kong and in enforcing port and maritime regulation therein, (k) execute summonses, subpoenas, warrants, commitments and other processes issued by the courts, (l) exhibit information and conduct prosecutions, (m) protect unclaimed and lost property and find the owners thereof, (n) take charge of and impound stray animals, (o) assist in the protection of life and property at fires, (p) protect public property from loss or injury, (q) attend the criminal courts and, if specially 49  Laws of Hong Kong, Chapter 232, Police Force Ordinance, Section 10.

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ordered, the civil courts and keep order therein, (r) escort and guard prisoners, (s) execute such other duties as may by law be imposed on a police officer. In an earlier era (before 1945) the HKP were even responsible for immigration control and health inspection. In performing such statutory duties, the HKP had broad powers to arrest, detain and seize persons and things. Police powers to stop and search HKP basic powers to stop, arrest, search and seize are provided for by Chapter 232, Police Force Ordinance, more specifically Sections 50 to 59.50 The most often exercised powers are: Section 50: “Arrest, detention and bail of suspected persons and seizure of suspected property”; Section 51: “Person arrested to be delivered to custody of police officer in charge of police station”; Section 52: “Person arrested to be discharged on recognizance or brought before a magistrate”; Section 53: “Power of arrest”; Section 54: “Power to stop, detain and search”; and Section 55: “Power to stop, search and detain vessels, etc., or person suspected of conveying stolen property.” Such basic police powers are supplemented and reinforced by derivative and delegated powers in other ordinances, e.g., Immigration Ordinance, the Prevention of Bribery Ordinance and Telecommunication Ordinance. HKP law enforcement powers rarely came under scrutiny before the 1980s. In 1988, in the run up to the transfer of sovereignty in 1997, the Hong Kong Law Reform Commission took up the challenge “To examine the existing law and practice governing the powers and duties of police and other public officers and private citizens relating” to arrest, search, seizure and bail. More specifically, to make HK police laws compatible with the spirit, letter and practice of British PACE (Police and Criminal Evidence) Law.51 Currently, the HKP have legally unlimited and operationally non-reviewable powers to stop and, if need be, search people in the street, at will.52 Section 54 of the Police Force Ordinance allows the police to stop any person in a public place who “acts in a suspicious manner” (54(1)) to check identity (54(1)(a)), to detain for questing (54(1)(b)) and to search for protection (54(1)(c)).53

50  Law Reform Commission, Topic 25: Report on Arrest (1992); G.N. Heilbronn, Criminal Procedure in Hong Kong (Hong Kong: Longman, 1998), Chapter 1. 51  Law Reform Commission, Topic 25: Report on Arrest (1992). 52  HKP powers remained unchanged after 1997. What has changed is the introduction of A Bill of Rights Ordinance (1991) and Basic Law, both providing explicit provisions protecting citizen and human rights, and in conformity with international conventions. A. Law, “The Crimes of Possession of Offensive Weapons from a Human Rights Point of View,” Hong Kong Law Journal, 27 (1997): 74. 53  See also Section 54(2) which gives police the power to stop a person if “he reasonably suspects [the person] of having committed or of being about to commit or intending to commit any offence” (54(2)(a)).

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The phrase “acts in a suspicious manner” is neither clearly defined by legislation nor authoritatively clarified by case law. As a result, the police have wide latitude and full discretion to stop, detain and question. In this regard, in one instance the Hong Kong Court of Appeal opined: “Acting furtively” or “acting in a suspicious manner” are expressions very frequently used by police officers in the witness box and, in this instance, the police officer later sought to explain what he meant by saying that when the appellant saw him he attempted to run away.54

In most cases, judges have simply deferred to the police by accepting their summary statement of facts and conclusive opinion of the situation as sufficient to prove that a person is acting in a “suspicious manner.” For example, in this case, the court found sufficient grounds for police to act: “On 16th October 1986 a police party was keeping a watch upon a van in a car park at the Square at Yuen Long. They saw two men each wearing white gloves acting in a suspicious manner.” In another case, the police stopped and searched the suspect because: “At about 0015 hours … the Appellant was seen loitering in the vicinity looking from side to side.”55 Neither of these cases provided objective facts for the court to judge independently the merit of the officer’s subjective “reasonable suspicion.” It is formally acknowledged by the court in Attorney General v Kong Chung-Shing [1980] HKLR 533 that mere “intuitive” suspicion is good enough to stop, and if necessary detain and search. Besides their basic powers to stop and detain, search and seize under Section 54, the HKP also have powers under specific ordinances, including Public Order Ordinance (Cap 245), Section 33 (b): “Any police officer may stop and search any person in a public place in order to ascertain whether or not that person has been guilty of an offence” of carrying an offensive weapon. Likewise, under Section 42 of the Firearms and Ammunition Ordinance (Cap 238), a police officer can stop and search a person if he “has reasonable ground for suspecting that such person has any arms or ammunition or imitation firearm in his possession; or … person is found in any vessel, vehicle, train, aircraft, premises or place in which any arms or ammunition or imitation firearm are found.” The HKP can also search without suspicion under the Traffic Ordinance (Cap 374). Under sections 43(1)(a) and 60 of the Ordinance, the police are allowed to stop a vehicle and request the production of a driving license from the driver. Finally and more significantly, the HKP can stop and if need be search people randomly and at will under two Hong Kong Ordinances. First, under Regulation 5 of the Road Traffic (Traffic Control) Regulations (Cap 374) the police are 54  Wong Chi Tim v. The Queen – [1972] HKCA 116; CACC000559/1972, October 3, 1972. 55  The Queen v. Shiu Kwok Kwan and Others – [1988] HKCA 149; CACC000360/1987, April 22, 1988.

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authorized to erect signs on any road for a period not exceeding 72 hours.56 These signs can include “Police Road Block.”57 The HKP has used this power to put up roadblocks to intercept speeding cars, cordon off crime scenes and mount action against illegal immigration operations. Second, Section 17(2) of the Immigration Ordinance (Cap 115) provides the police with unlimited power to conduct identification checks of any person/papers anywhere and anytime, without any factual predicate. “A person … to have with him proof of his identity shall on demand produce it for inspection ….” The Police Tactical Unit (PTU) has resort to this ID-checking power to mount saturation crime control operations, i.e., sweeping and searching anyone street by street, block by block. Street uniform police have used this power to stop and search people they find suspicious, offensive or just not respectful of authority. The existence of such powers has been questioned by the Hong Kong Law Reform Commission: In fact, the ID check provisions of the Immigration Ordinance when used in conjunction with some of the broader existing stop and search powers described below might give rise to the conclusion that the police can justify any stop and search (ex post facto if necessary). For example, an initial stop and search could be explained on the basis of a random ID check and that the suspect’s behaviour after the stop gave rise to reasonable suspicion. It could be argued that the practice of random stops without a requirement of reasonable suspicion could be a violation of Article 14 of the Bill of Rights Ordinance which deals with protection of privacy, etc (see also Article 5 of the Bill of Rights Ordinance).58

As compared to their counterparts in the West (e.g., in the UK or United States), the HKP possess much more power and very few restrictions. For example, Terry vs. Ohio59 authorized police officers to “stop and frisk” suspects on reasonable suspicion based on articulable facts. Furthermore, unconstitutionally seized evidence is excluded in court, notwithstanding its material and probative values.60 Hong Kong laws, however, do not require articulable facts to justify a search nor do they call for the exclusion of evidence when it is illegally obtained.

56  “The Commissioner of Police may cause to be erected or placed on or near any road a temporary traffic sign for a period not exceeding 72 hours.” 57 The Report on Arrest has questioned is authority, which is given for road diversion and traffic control purposes, for stop and question, search and detention. See Law Reform Commission, Topic 25: Report on Arrest (1992). 58  Ibid., 3.4–5. 59  Terry vs. Ohio, 392 US 1 (1968). (Police must have reasonable suspicion based on articulable facts before he can stop and frisk.) 60  Weeks v. United States, 232 US 383 (1914).

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Police administrative law powers The original concept of “police power” is a generic one—the power of the state to promote public health, welfare and safety.61 Viewed in this light, the real power of the HKP comes from its ability to regulate every facet of people’s lives for the common good. For example, as discussed above, for historical reasons, the border area between Hong Kong and China has always been considered a restricted area, i.e. closed to the general public, and access to such areas depends on the issuance of a Closed Area Permit (CAP) for which the public has to apply to the HKP. This affects millions of people who go to pay tribute to their parents’ graves each year. Similarly, if a director needs to shoot a film or TV program in Hong Kong, he or she is required to seek permission from the HKP.62 II. Varieties of Complaint against the Police System: CAPO and IPCC Overview63 There are basically five ways or strategies to control police misconduct in Hong Kong: 1. administrative control, i.e., CAPO and IPCC 2. institutionalized political control, i.e. Legislative Council (Legco) oversight 3. informal political control, i.e. pressure from political parties (e.g., public comments), interest groups (e.g., annual reports) or the press (e.g., investigative reporting) 4. official legal control, i.e., international conventions (e.g., International Covenant on Civil and Political Rights), fundamental laws (e.g., Hong Kong Bill of Rights Ordinance), domestic legislation (e.g., Police Force Ordinance), internal administrative regulations (e.g., Police General Order), criminal prosecution (e.g., Crimes (Torture) Ordinance) and private civil proceedings (e.g., action in tort) 5. unofficial professional/peer control, e.g., professional culture and peer pressure. Hong Kong Complaints against the Police in Historical Perspective Prior to the 1960s public complaints against the police were rare though police misconduct was commonly experienced, universally known and generally accepted as part of HKP culture and practice. The political relationship between the HKP 61  Brian Chapman, Police Power (London, Macmillan,1970). 62  Government regulations (Government Information Bureau – November 17, 1997). 63  Douglas W. Perez, Common Sense about Police Review (Philadelphia, PA: Temple University, 1994).

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and the people was not the same then (ruler and ruled) as it is now (service agency and client). In 1963, a man named Chan Kin-kin lodged a complaint in England alleging that he had been subjected to police brutality while being detained by the HKP. The case led to the appointment of Mr Justice Blair-Kerr to lead a commission of inquiry that made a number of recommendations for the improvement of police complaint procedures. From 1963 onward, the Commissioner of Police Annual Report included a section devoted exclusively to the subject of complaints against the police. The Police Annual Report in 1967 was the first to classify complaints against the police into categories—six in all—namely: assault, unnecessary exercise of authority, overbearing conduct, use of foul language, neglect of duty, improper action. Before 1974, complaints against the police were investigated by Chief Inspectors in charge of the respective formations. All complaints were investigated internally and disposed of administratively—criminal investigation and external review were unheard of. The District Commanders would review the investigation report and its findings and recommendations. In 1974, CAPO was established, and with it a “centralized” (a HQ function), “independent” (of the formations) and “institutionalized” (dedication of functions) system to deal with complaints against the police was born. In late 1976, Mrs. Elsie Elliot launched a campaign against police brutality, complaining of a total lack of effective supervision over police conduct, if not even a conspiracy of silence in the face of chronic police misconduct. The resulting public pressure led to the formation of the UMELCO (Unofficial Members of the Executive and Legislative Councils) Police Group in 1977. The group was a nonstatutory “civilian review” body appointed by the then Governor with the Attorney General as a co-opted member. For the first time CAPO was placed under the “civilian” monitoring of the UMELCO (later renamed OMELCO, referring to the Office of the Members of the Executive and Legislative Councils) Police Group. Notwithstanding the establishment of the UMELCO Police Group (or perhaps because of it?) the HKP saw a sharp increase in complaints against the police between 1978 and 1984—from 2,264 in 1978 to 4,398 in 1984. The Government in turn set up a working party to review the monitoring role of the UMELCO Police Group. In 1986 a more permanent “civilian review” body, the Police Complaints Council (PCC), replaced the UMELCO Police Group. The PCC had a chairman and two vice-chairmen drawn from UMELCO with at least eight of its members drawn from a pool of active non-official Justices of the Peace. The PCC was not a UMELCO body, however. From the very beginning the PCC had its own independent existence and separate identity, i.e., it had its own budget, staffing, charter and mission. It was staffed by a secretariat and operated as a separate government agency. Members of the PCC continued to be appointed by the Governor. The Attorney General or his representative (who ceased to be a member in 1996) was appointed as an ex-officio member. In 1989 the Commissioner for

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Administration Complaints (now renamed the Ombudsman) was nominated as an ex-officio member of the PCC. In the late 1980s and early 1990s, the political economy of Hong Kong changed drastically. After the Sino-British Joint Declaration was signed, making way for the eventual return of Hong Kong to the PRC, a so-called “transition period” began to transfer sovereignty and administration to the PRC. The “transition period” affected the Hong Kong public in drastic ways. It created a confidence crisis in Hong Kong. Particularly, there was great concern over the loss of freedom and erosion of the rule of law in Hong Kong after 1997. There was genuine anxiety and widespread fear that the HKP might be used as an instrument of the PRC Government to impose political domination over Hong Kong.64 It was under such political circumstances that the British Government, with the help of its last Governor, Chris Patten, spearheaded fundamental political and legal reform in Hong Kong. Patten introduced more democratic participation in the political system and promoted the rule of law with the people. For example, various structural and permanent elements were established to protect the human rights of the people of Hong Kong after 1997, starting with the introduction of the Hong Kong Bill of Rights Ordinance (Cap 383) in 1991. Article 1: Entitlement to rights without distinction, reads: (1) The rights recognized in this Bill of Rights shall be enjoyed without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

It was in this context in 1993 that Legislative Councilor Mr James Tao along with “progressive” human rights groups alleged that the PCC was not working. They pointed to the “persistently high” complaints rate and “unacceptably low” substantiation rate as evidence that police misconduct was running amok and that the accountability system was not working properly. In December 1994, the PCC became the IPCC (Independent Police Complaints Council) to make it more independent, autonomous and powerful. In July 1996, a further move was initiated to enhance of the effectiveness, credibility and legitimacy of the IPCC with the introduction of an Independent Police Complaints Council Bill (the Bill). The Bill sought to turn the IPCC into a statutory body monitoring police misconduct with enhanced oversight powers. The Bill empowered the IPCC to: • refer complaints back to CAPO for re-investigation; • allow selected public members to sit-in CAPO investigation proceedings through scheduled or surprise observations; • establish special panels to monitor serious cases; 64  Hong Kong Voice of Democracy, 1998. http://www.politicalresources.net/hongkong.htm (Visited March 26, 2012).

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• submit its reports to the Governor on an annual basis; and • lay its annual report before the Legislative Council for scrutiny. The primary role of the IPCC, however, remained that of reviewing and monitoring (i.e., performing a civilian review role) and not investigation and discipline (i.e., no complaint investigation/adjudication functions). Thus, no independent investigative power was conferred. A number of heated debates arose over the merits and adequacy of the Bill in taming the police. Some of the biggest concerns expressed by the Legco members were that the CAPO system was neither independent of the HKP nor transparent to the public, i.e., it lacked credibility and legitimacy. There were a number of counter proposals. They ranged from appointing a civilian head to CAPO to giving the IPCC investigative powers, to improving the effectiveness of the civilian oversight system and process. During the first and second readings of the Bill, a number of motions called for significant amendments to the Bill. Some amendments were actually passed. However, the government considered the Bill with such amendments unacceptable. The government’s argument was that the amendments called for fundamental changes to the existing police complaints system. The Bill was finally withdrawn by the Administration during its third reading on June 23, 1997 (one of the last Legco Meetings before July 1, 1997). Notwithstanding the withdrawal of the Bill, the Administration undertook steps to reform the IPCC as far as possible along the lines of and in accordance with the provisions that had been accepted during the Committee stage. These included: a. widening the definition of “witness” to include any person whom the IPCC considers would be able to provide assistance; b. giving the IPCC power to request CAPO to submit an interim report on the progress of the investigation of any complaint within six months from the date of the request; and c. allowing IPCC members, with the consent of the Commissioner of Police, to interview any witness after an interim report has been submitted in connection with a complaint. The Commissioner shall give his consent for the interview unless he is of the opinion that such interview would likely prejudice the investigation of any crime or complaint. CAPO (Complaints Against Police Office) In terms of legal authority and institutional arrangement, the Commissioner of Police charges CAPO with the responsibility of investigating all complaints against police. Legally speaking, CAPO is not a statutory body with independent powers (like the IPCC) but an administrative organ reporting to the Commissioner of Police through the chain of command. Thus the Commissioner of Police has the ultimate authority and sole prerogative in determining whether, to what extent,

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and how CAPO should operate, e.g., what kinds of cases are to be investigated by CAPO. For example, Chief Superintendent David Thomas was found guilty by CAPO of abusing his authority in sending police officers under his command to harass a fellow social club associate at her school in January 1999. The Commissioner of Police declined to discipline the officer but referred the case to the Civil Service Bureau for final disposition instead. This case shows clearly that the Commissioner of Police has the power to accept or not accept the CAPO investigative findings and recommendations. However, in practical terms the effectiveness of CAPO as a check on police misconduct is determined less by a single person—powerful though the Commissioner of Police obviously is—as it is shaped by the confluence of many personal, institutional, organizational, political and social forces. Viewed in this light, the determination of the Commissioner of Police is always subject to the influence of entrenched institutional forces (e.g., competition between various factions65) as informed by dynamic interplay between organizational factors (e.g., maintaining loyalty vs. promoting accountability) within the HKP. It goes without saying that the Commissioner of Police has to take into account the political pressure and public opinion of the wider community at that time. CAPO organization Organizationally, CAPO is a division of the Complaints and Internal Investigation Branch.66 The division is commanded by a Chief Superintendent who reports directly to the Assistant Commissioner of Police (Service Quality). A Senior Superintendent commands CAPO. The ranking structure of the HKP precludes CAPO from being effective against very senior officers, e.g., Chief Superintendent and above. Disciplining Chief Superintendent grade officers necessarily requires the personal attention of the Assistant Commissioner and the approval of the Commissioner. The Commissioner himself must approve investigation of a Commissioner grade officer. It is appropriate to ask whether and to what extent Command influence and personal connections might influence the course of a CAPO investigation? This goes to the credibility and legitimacy of CAPO to be discussed in due course. In terms of staffing, CAPO has ten investigation teams and three Headquarters teams. Each team is responsible for handling complaints from two to three formations. Besides investigating complaints, the investigation teams also monitor complaint trends closely. This allows the HKP to document any patterns in police 65  One of the salient characteristics of Hong Kong Police is the “horse stable” system of patronage. One has to belong to a certain “stable” formed around a certain “big brother” (“da lo”) to have his/her career protected. Police informants, students of author (2004). 66  Police General Orders, Chapter 26: Complaints Against Police and Internal Investigations, 4/02 . (Visited March 26, 2012).

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abuses in order to devise timely, appropriate and proactive strategies to deal with emerging problems affecting each formation; a kind of community policing/ problem-oriented policing at work. CAPO process67 The role of CAPO is to conduct investigations into complaints against police officers or civilian employees of the force who exercise, or claim to exercise, police or government authority, whether on or off duty. CSP C&IIB (Chief Superintendent of Police Complaints and Internal Investigations Branch) may also direct CAPO to investigate complaints made by police officers against other police officers, or complaints against off-duty officers who do not exercise police authority. These complaints and investigations are not reportable to the Independent Police Complaints Council. According to the internal official webpage, the establishment of CAPO is to ensure that all complaints of misconduct or allegations of crime made against a member of the police force, civilians attached to the police force or traffic wardens are fully and impartially investigated. It also protects members of the force from vexatious and malicious complaints and investigates complaints of defects in police administrative procedures or operational methods. People can make complaints against police by letter, by phone and in person to the Complaints Against Police Reporting Centre of CAPO or any police station. The address of the Reporting Centre is: Ground Floor, Annex Block, Caine House, Police Headquarters, No. 3 Arsenal Street, Wanchai. A Station Sergeant and a Senior Inspector under the command of SP CAPO HQ supervise the Reporting Centre manned by six Duty Officers. The Reporting Centre is open every day, except Sundays and public holidays, from 8 a.m. to 6 p.m. Monday to Friday, and 8 a.m. to 1 p.m. on Saturday. Outside these office hours, there is normally a recorded message advising people what to do. CAPO investigation teams CAPO operates on a regional basis. Following the re-structuring of CAPO in September 1998, a structure of ten investigation teams was adopted with four teams for the Kowloon (K) Office and three teams for Hong Kong Island (HKI) and the New Territories (NT) Offices respectively. CAPO undertakes to handle serious complaints against the police, including complaints where criminal charges against the complainee are likely to arise, as well as cases where charges might be laid against the complainant, e.g., making a false statement. In recent years, more focus has been put on liaison with formations with a view to increasing the transparency and openness of CAPO, ensuring an effective monitoring of 67  Lam Ka Pik, “Police complaints system and the proposed legislation – Independent Police Complaints Council Bill,” dissertation submitted to the University of Hong Kong in partial fulfillment of the requirements for the degree of Master of Public Administration, pp. 46–59.

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complaints trends and taking action to help complaint prevention and improve service quality. The investigation teams investigate complaints of a serious and complicated nature but they also monitor and take finalizing action in respect of minor complaints, which are generally referred to formations for investigation. Complaint cases involving traffic formations except traffic complaint-related cases are all investigated by CAPO HKI and cases involving Marine Region by CAPO K. Officers posted to CAPO are normally expected to remain in post for not more than three years. This tenure may be extended upon the personal approval of CSP C&IIB. Posting of inspectorate officers to CAPO is coordinated by SP CAPO HQ, in consultation with SSP CAPO and the three regional SP CAPOs. The basic selection criteria include a good service record and preferably attendance of the Standard Criminal Investigation Course (SCIC). Junior Police Officers (rank-andfile officers) are normally drawn from the uniform branch with preference given to those with former experience in crime formation and having received SCIC training. All officers are vetted prior to being posted to CAPO. Internal investigations—minor complaints Complaints other than assault, fabrication of evidence or other crimes are generally considered minor complaints which are normally referred to districts or formations for investigation and scrutinized by CAPO before being forwarded to the IPCC for endorsement. Whenever the SSP CAPO considers that a complaint against police is of a minor nature he refers it to a Formation Commander through the appropriate Major Formation Commander for investigation. The Formation Commander will nominate an appropriate officer, not below the rank of Inspector, to conduct the enquiry. The nominated officer should not be closely connected with or have operational responsibility for the officers against whom the complaint is directed. Formation Commanders are to comment upon the recommendations of the investigating officer, particularly if the complaint relates to implementation of policy within the formation. The nominated officer will conclude his enquiry within two months and submit the case file containing his findings and recommendations to his Formation Commander, who will forward the file to the SP CAPO Region through his Formation Commander. Whenever a Formation Commander finds that the investigation of a complaint which has been passed to him for investigation reveals a more serious matter, or involves more than one formation, or the complainant has explicitly expressed his wish for CAPO to investigate the complaint instead of the respective formation, he may request SSP CAPO to take back the investigation. Similarly, SSP CAPO may, at any time and at his own discretion, call for the return of a file and take over an investigation. Informal Resolution procedure Informal Resolution (IR) provides a system of conciliation to resolve minor complaints promptly, which would otherwise require a full investigation. Cases that

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have been informally resolved are subject to review by the IPCC. The IR system came into full operation in January 1992. The purpose is to give complainants an opportunity to air their views to a senior police officer (Conciliating Officer) and ensure a prompt exchange of opinions, and, where necessary, government or force policy will be explained, so that a complaint of a minor nature can be resolved quickly and impartially without a lengthy enquiry in which a formal investigation invariably necessitates. Effective from March 2005, a Chief Inspector can be appointed as the Conciliating Officer in IR cases. All minor complaints are suitable for IR unless: a. the complainant does not agree to IR; b. there is significant conflict in testimony, e.g., a denial by the complainee of his presence during the complaint incident, but minor conflict in testimony such as the time of the incident will not necessarily prevent the use of IR; c. circumstances indicate that if the complaint were investigated and substantiated, criminal or disciplinary charges would ensue; d. the complaint refers to a refusal or reluctance to grant bail; or e. an officer of the rank of Superintendent in CAPO or a Deputy District Commander (normally Superintendent) or equivalent directs the case is not suitable for IR. Allegations of crime CAPO does not investigate allegations of crime where: a. a member of the police force is arrested while committing a criminal offense, or in the course of enquiries by a crime formation, it appears that a member of the police force is involved in a criminal offense. Such investigations are to be conducted by the appropriate crime formation in the normal way; b. serious or complicated allegations are made such as homicide or significant deception cases, in these circumstances the SSP CAPO will advise ACP Crime or a Major Formation Commander on relevant matters; and c. in the opinion of SSP CAPO after consultation with the respective Major Formation Commander, the investigation of the case is best dealt with by a major formation. In (a) and (b) above, where CAPO does not take over a case enquiry, it monitors the investigation/and will notify IIO. Allegations of corruption and corrupt practice against a member of the force are to be referred to the Independent Commission Against Corruption (ICAC) according to the “Report of Corrupt Practices.” Sub-judice complaints In any case where a complaint arises from the complainant in connection with a charge or summons, the SSP CAPO initially determines if the complainant’s

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allegations should be treated as being “sub-judice.” Sub-judice complaint investigation procedures have been adopted since January 1992. Investigations into these complaints are suspended when the subject matter of the complaint relates to a pending trial and initial investigation shows no indication of misconduct to justify interfering with the prosecution. A complainant can also request, in writing, that it is his wish for his complaint to be investigated sub-judice and thus give a detailed statement at the outset. With the subsequent approval from SP CAPO Regional Office of the complainant’s request, a sub-judice complaint investigation can be conducted forthwith. Whether an investigation will be necessary after the trial depends upon any evidence elicited during the trial relating to the complaint and whether there are any outstanding issues arising. At the end of the court proceedings, when it is found that the complaint has been fully aired and is not supported by the court, no further investigative action is taken. When the court result indicates that further investigation into the complaint is warranted, the HKP would have to review the court’s findings for further actions. The investigation of sub-judice complaints can be suspended on the direction of SP CAPO Regional Office or the Department of Justice. Complaints against officers who are not on duty The mere fact that another party to an incident such as a traffic accident, where the incident is reported by a member of the public, is a police officer is not sufficient reason to justify the matter being treated as a complaint against police. Whether such a matter should be so treated depends on the particular circumstances of the incident. A report which concerns off-duty conduct should only be recorded as a complaint against police if the fact of the other party being a police officer is an element of the complaint. If, in the course of an incident, an off-duty police officer formally identifies himself or his identity is so well known to other parties that it is unnecessary for him to identify himself, then the officer may be considered as having been on duty and any complaint arising from the incident may be investigated as a complaint against police. Where there is a doubt, SSP CAPO will direct whether or not an incident is to be classified as a “Complaint Against Police.” CAPO assessment Practically, staffing arrangements at CAPO are likely to influence the public’s perception of its independence and actual effectiveness. Since all officers within CAPO are subject to internal transfer, i.e., posting to CAPO is not permanent and not to be considered a career track, CAPO officers can expect to be transferred back to regular policing work eventually. As the Hong Kong Human Rights Commission observed:

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Officers working in CAPO come from the police force, and will return to their posts in the future. After serving a few years, they will leave CAPO and return to the normal hierarchy. The work in CAPO is acknowledged as temporary and they remain police officers. Structurally and psychologically, the investigators in CAPO are attached to the police establishment and impartiality is not easy to maintain.68

This raises the issue of whether CAPO officers can ever be expected to act independently of the mother organization upon which their career depends (e.g., free of command influences) and isolate themselves socially from their fellow officers whom they have learned to rely on emotionally (e.g., free of peer pressure). Section 26–01 of the Police General Orders defines “Complaints Against Police” as complaints made by a member of the public against the conduct of a member of the HKP in the execution of his official duties, or when on duty, where the complainant is an aggrieved party to the alleged misconduct, but does not include: a. traffic complaints b. complaints made against an officer in his personal capacity, or when off duty, unless such complaint refers to some misconduct connected with his official authority, and c. complaints against police standards, procedures or methods unless the complainant is an aggrieved party CAPO categorizes complaints in ascending order of seriousness: a. b. c. d. e. f. g. h.

police procedures overbearing/impolite conduct/abusive language unnecessary use of authority neglect of duty/improper action threat fabrication of evidence other offenses assault

In terms of procedure, minor complaints related to the first two categories are referred to the parent formations of the complainees for investigation. The investigation result will then be examined by CAPO, and if required referred back to the relevant formations for further investigation or re-investigation. Other more serious complaints are investigated by CAPO. Specialized divisions within the HKP will investigate police crimes. A typical enquiry of complaints includes: 68  Hong Kong Human Rights Commission, Hong Kong Human Rights Report 1993.

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• interviewing complainants and complainees and all relevant witnesses; • carrying out scene visits; • obtaining any medical report and seeking a pathologist’s advice if necessary; • reviewing criminal case files, police notebooks and court case; and • seeking legal advice to see if there is sufficient evidence to support any criminal or disciplinary charge against the complainee. In theory, CAPO is structurally relatively independent and is fairly effective against lower rank line officers on operational matters.69 In practice, it is still far from being an independent, objective and credible complaint investigative agency. In July 1992 the PCC secretary submitted an internal document evaluating the work of CAPO to the PCC. The document highlighted that: a. CAPO investigators usually frame questions in a manner favorable to the officer complained of when taking statements. b. Investigators are not critical enough when handling evidence given by police. c. Investigators usually adopt a defensive rather than an investigative perspective in analyzing evidence. The PCC observation is in line with discussions I have conducted with serving police officers and conclusions drawn from structured person interviews. CAPO’s independence and its effectiveness are further compromised once its investigation reaches into the higher ranks, i.e., Superintendent and above, and especially with policy and strategy matters. This was more than clearly demonstrated in the complaint against an Assistant Commissioner who broadcast music to drown out the voices of demonstrators on July 1, 1997. CAPO cleared the officer but the disposition was not endorsed by the IPCC. This led to the following question being posed by Legco member James To, the Security Panel Chair, in the Legislative Council: Regarding the complaint against the Police’s broadcasting of music to subdue the voice of demonstrators on the Handover night last year, the Complaints Against Police Office (CAPO) considered that the police had not made any mistake. However, the Independent Police Complaints Council (IPCC), upon investigation, considered the complaint substantiated and submitted a report to the Chief Executive. In this connection, will the Government inform this Council:

69  Interview with eight officers in November 1999.

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Policing in Hong Kong a. Whether the Chief Executive will respond to the investigation report; b. Given the different conclusions of CAPO and IPCC over the complaint, what measures the authority will take to improve the existing complaints against Police system, so that it can win the trust of members of the public; c. How the Police will, in formulating the procedures and guidelines regarding the handling of demonstrations, implement the recommendations of IPCC in this respect, so as to safeguard the demonstrators’ freedom of speech; and d. In regard to the posting of the police officer under investigation as head of CAPO when the case was still being investigated by CAPO, has the authority considered whether such an arrangement would affect the operation and credibility of CAPO in investigating the case; if the credibility of CAPO is affected as a result, what remedial measures will be adopted?70

The Legco questioning by To reveals that CAPO is not an adequate safeguard against police abuse of office if such abuses reach high places. Without passing judgment on the merit of the case, the public has a right to be skeptical when a complained-of officer can be posted to head CAPO when he himself is still under investigation by CAPO. This is a clear case of conflict of interest. The issue is, can an organization be trusted to investigate itself? IPCC (Independent Police Complaints Council) After CAPO investigates a case, it files an investigation report with the IPCC together with the case file. The investigation file is scrutinized in detail by Executive Officers of the IPCC Secretariat. If necessary, the in-house Senior Government Counsel will be consulted. All CAPO reports, including the draft replies to complainants, are discussed in detail at the weekly Secretariat’s case conferences chaired by the Secretary of the IPCC. After each case conference, the Secretariat will write to CAPO, when necessary, for clarification. Alternatively, the IPCC can draw the attention of the Commissioner of Police to any inadequacies in existing police policies, procedures and practices and propose remedial measures where appropriate. Once every fortnight, batches of cases that have been vetted by the Secretariat are circulated to IPCC members for consideration. The majority of the cases are cleared through the IPCC circulation process. However, a few complicated cases involving grave policy implications—or that cannot be resolved by correspondence between the Secretariat and CAPO—are considered at joint IPCC/CAPO meetings chaired by the IPCC Chairman. Since 1994, the IPCC has been empowered to interview witnesses when it considers necessary. The IPCC has full discretion to decide who should be invited for interview but it has no legal power to compel witnesses to attend. After each 70  Hong Kong SAR Government, “CQ1: Complaints Against Police System,” Press Release, Wednesday, July 8, 1998.

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interview is conducted by a panel of two IPCC members, a record is submitted to the full Council. Since 1996, IPCC members have been allowed to sit in and observe CAPOs investigations through scheduled or surprise observations. However, it should be noted that with this power, the IPCC interviewed only 21 witnesses in 11 cases from October 1994 to December 1995. By contrast, in 1995 alone, 3,454 complaints against the police were reported to the IPCC. Further, the IPCC can only “invite” witnesses to appear, it cannot compel their appearance. And the IPCC is only allowed to speak to witnesses after the conclusion of CAPOs investigation. While IPCC members can now observe CAPO interviews with complainants, witnesses or complainees, they are not allowed ask any questions of the interviewee.71 Following the formal endorsement of investigative files by the IPCC, CAPO will inform the complainant(s) of the results of the investigation. CAPO will also notify the complainees of the results and take appropriate follow-up or remedial actions. As part of the review mechanism, the IPCC Secretariat assumes the responsibility of informing complainants and complainees of the outcome of CAPO review/re-investigation into their complaints. The Commissioner of Police has full discretion in imposing disciplinary action on police officers found guilty of disciplinary transgressions as a result of a complaint. The IPCC can comment on the proposed disciplinary action, e.g., whether it is commensurate with the gravity of the offense. As part of its charter, the IPCC is empowered to make suggestions to improve upon police internal policy and procedures to the Commissioner of Police, and if need be to the Chief Executive. III. Patterns of Police Abuse of Power in Hong Kong Problems with Measuring Abuse of Power in Hong Kong There is no accurate and reliable data on police abuse of power in Hong Kong.72 Independent surveys of police abuse of power have rarely been attempted. In 1984 The Law Reform Commission of Hong Kong collected some data on challenges to police confessions in the courts of Hong Kong and found them to be a major drain on judicial resources.73 An ongoing study by Janice Brabyn of the University of Hong Kong has revealed that 162, or 21 percent of 762 defendants in criminal cases handled by the Magistracy over a two-month period challenged confession evidence. In 74, 71  Hong Kong Human Rights Monitor, “Position Paper on Police Interrogation Practices and Complaints Procedures” (January 19, 1996). 72  Ken Adams, “What we know about Police Use of Force,” in Use of Force by Police: Overview of National and Local Data (Washington, DC: US Department of Justice, 1999). 73  Law Reform Commission, Topic 8: Report on Confession Statements and Their Admissibility in Criminal Proceedings (December 14, 1984).

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or 46 percent of those cases, the defendants alleged improper police behavior in obtaining confessions. Forty-three claimed that they had been assaulted by the police, 36 claimed that threats were made against them or family members in order to induce confession. Tellingly, the magistrate upheld the defendant’s challenge in 29, or 18 percent of the 162 cases in which confession evidence was at issue. Hong Kong’s rate of challenge to the admissibility of confessions and the rate at which such challenges are upheld is quite high compared to other jurisdictions. Many of the Monitor’s members are legal practitioners and have long believed that illegal or improper use of force in arrest and interrogation is routine. This has been confirmed.74 Police abuse of power cases surface when they are reported to the police as a complaint or make it into the press/media as a newsworthy item. Neither of these two sources is considered a very reliable indicator and/or accurate representation of the distribution and magnitude of the police abuse of power problem. Incidence and Prevalence of Police Misconduct in Hong Kong Both CAPO and IPCC keep records of citizens’ complaints against the police. These data give us a partial view of the nature, distribution and resolution of complaints of abuse. Complaints against police are mainly divided by their nature into the categories listed in Table 2.4, which gives figures for the period 1996– 2004. Table 2.4 reveals that between 1996 and 2004 the number of complaints remained at about 3,000. However, the relative distribution, i.e., the mix of complaints, saw some noticeable changes. Generally, more serious (criminal) complaints decreased in absolute and relative terms. For example, assault (violation of criminal law) decreased from 1,265 cases (38.2 percent) in 1996 to 682 cases (21.2 percent) in 2004, and fabrication of evidence (miscarriage of justice) decreased from 238 cases (7.2 percent) in 1996 to 134 cases (4.2 percent) in 2004. Conversely, less serious (disciplinary) complaints increased. For example, neglect of duty increased from 601 cases (18.2 percent) in 1996 to 1,130 cases (35.1 percent) in 2004. Finally, the most significant observation to be made is that there is no discernible difference, in terms of police abuse, before and after 1997; when Hong Kong changed status from a British Colony to a Chinese Special Administrative Region (SAR). In terms of reporting police abuse, Table 2.5 shows that most people preferred to report to the police rather than to some other independent agency, e.g., the IPCC. They either did it in person, by letter or by phone. The statistics show that in 1994, 897 cases (29.1 percent) were reported to CAPO, 1,607 cases (52.1 percent) to police stations, and 197 (6.4 percent) to the Commissioner of Police. In 2004, 1,384 cases (43.0 percent) were reported to CAPO, 984 cases (30.5 percent) to 74  Hong Kong Human Rights Monitor, “Position Paper on Police Interrogation Practices and Complaints Procedures” (January 19, 1996).

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Table 2.4

Assault Misconduct/ Manner/ Offensive Language Neglect of Duty Unnecessary Use of Authority Fabrication of Evidence Threat

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Citizens’ Complaints Against Hong Kong Police: 1996–2004 1996 (% to total) 1,265 (38.2) 838 (25.3)

1997 (% to total) 976 (33.2) 814 (27.7)

1998 (% to total) 910 (31.3) 756 (26.0)

1999 (% to total) 878 (28.5) 786 (25.5)

2000 (% to total) 815 (22.3) 1,050 (28.7)

2001 (% to total) 658 (20.3) 1,033 (31.8)

2002 (% to total) 602 (15.8) 1,080 (28.3)

2003 (% to total) 594 (17.6) 922 (27.3)

2004 (% to total) 682 (21.2) 971 (30.1)

601 575 745 892 1,209 1,097 1,586 1,443 1,130 (18.2) (19.6) (25.6) (29.0) (33.1) (33.8) (41.5) (42.7) (35.1) 215 213 223 199 257 183 230 172 164 (6.5) (7.3) (7.7) (6.5) (7.0) (5.6) (6.0) (5.1) (5.1) 238 (7.2) 98 (3.0) 2 (0.1) 52 (1.6) 3,309

202 (6.9) 115 (3.9) 5 (0.2) 37 (1.3) 2,937

142 (4.9) 96 (3.3) 8 (0.3) 28 (1.0) 2,908

202 (6.6) 100 (3.2) 7 (0.2) 17 (0.6) 3,081

Police Procedures Other Crimes Total No. of Complaints Source: The IPCC Annual Reports, 1996–2004

192 (5.3) 103 (2.8) 14 (0.4) 16 (0.4) 3,656

155 (4.8) 88 (2.7) 14 (0.4) 18 (0.6) 3,246

167 (4.4) 127 (3.3) 17 (0.4) 13 (0.3) 3,822

168 (5.0) 65 (1.9) 10 (0.3) 9 (0.3) 3,383

134 (4.2) 123 (3.8) 9 (0.3) 9 (0.3) 3,222

police stations, and 207 (6.4 percent) to the Commissioner. It is clear from this set of data that the Commission, in spite of its apparent authority and ultimate responsibility, has never been a major outlet for complainants. This might be due to the fact that the office of the Commission is less visible and relatively inaccessible to the public. What is also clear is that people are turning more and more to CAPO to file their complaints instead of going to the more accessible police station. This might be due to the fact that CAPO has increasingly earned the respect of the public as an independent, efficient and effective agency for processing complaints against the police. What is harder to explain is why the complainants chose to resort to internal accountability organs, i.e., CAPO, instead of external accountability organs, i.e., the IPCC, ICAC or Legislative Council. In 1994, the IPCC received only 6 cases (0.2 percent) and in 2004 only 16 cases (0.5 percent). The Legco/solicitors office did not fare any better. In 1995, it received 9 cases (0.3 percent) and in 2004 it received 22 cases (0.7 percent). The last observation to be made regarding Table 2.5 is that the judiciary is becoming increasingly important as a rights-protecting institution for the public to turn to, as a last resort. In 1994, the judiciary handled only 6 cases (0.2), but in

Table 2.5

Origin of Complaints Received: 1994–2004

Reported to CAPO in person or by telephone Reported to a police station in person or by telephone Reported by letter (to Commissioner of Police, Box 999, CAPO or police formation) Complaints made at Prisoner Reception Centers / in Prisons Received via ICAC Received via Legco, solicitors Received via judiciary Received via Police Public Relations Branch / press / radio Received via other government departments Received via the IPCC Others Total reports received

1994 (% to total) 897 (29.1) 1,607 (52.1) 197 (6.4)

1995 (% to total) 960 (27.8) 1,764 (51.2) 245 (7.1)

1996 (% to total) 1,168 (35.3) 1,505 (45.5) 244 (7.4)

1997 (% to total) 1,239 (42.2) 1,190 (40.5) 181 (6.2)

1998 (% to total) 1,184 (40.7) 1,105 (38.0) 302 (10.4)

1999 (% to total) 1,253 (40.7) 1,026 (33.3) 280 (9.1)

2000 (% to total) 1,659 (45.4) 1,104 (30.2) 308 (8.4)

2001 (% to total) 1,634 (50.3) 1,018 (31.4) 197 (6.1)

2002 (% to total) 2,006 (52.5) 1,023 (26.8) 247 (6.5)

2003 (% to total) 1,744 (51.6) 969 (28.6) 232 (6.9)

2004 (% to total) 1,384 (43.0) 984 (30.5) 207 (6.4)

272 (8.8) 82 (2.7) 0 (0.0) 6 (0.2) 7 (0.2) 3 (0.1) 6 (0.2) 7 (0.2) 3,084

312 (9.0) 89 (2.6) 9 (0.3) 41 (1.2) 8 (0.2) 7 (0.2) 11 (0.3) 2 (0.1) 3,448

217 (6.6) 74 (2.2) 8 (0.2) 53 (1.6) 12 (0.4) 9 (0.3) 14 (0.4) 5 (0.2) 3,309

207 (7.0) 35 (1.2) 2 (0.1) 53 (1.8) 15 (0.5) 8 (0.3) 6 (0.2) 1 (0.0) 2,937

197 (6.8) 23 (0.8) 1 (0.0) 70 (2.4) 13 (0.4) 5 (0.2) 5 (0.2) 3 (0.1) 2,908

145 (4.7) 30 (1.0) 8 (0.3) 301 (9.8) 6 (0.2) 3 (0.1) 27 (0.9) 2 (0.1) 3,081

80 (2.2) 28 (0.8) 6 (0.2) 400 (10.9) 13 (0.4) 15 (0.4) 35 (1.0) 8 (0.2) 3,656

55 (1.7) 19 (0.6) 11 (0.3) 277 (8.5) 7 (0.2) 7 (0.2) 18 (0.6) 3 (0.1) 3,246

79 (2.1) 19 (0.5) 18 (0.5) 383 (10.0) 15 (0.4) 10 (0.3) 16 (0.4) 6 (0.2) 3,822

57 (1.7) 4 (0.1) 18 (0.5) 334 (9.9) 7 (0.2) 8 (0.2) 4 (0.1) 6 (0.2) 3,383

43 (1.3) 8 (0.2) 22 (0.7) 544 (16.9) 7 (0.2) 2 (0.1) 16 (0.5) 5 (0.2) 3,222

Source: The IPCC Annual Reports, 1994–2004

Table 2.6

Percentage of Substantiated Rate of Allegations to Total Allegations of the Same Nature as per CAPO Reports Examined by the IPCC: 1994–2004

Nature of Allegation \ Year Assault

1994

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

0.2 (2.8) 1.9 (7.8)

0.3 (4.0) 1.6 (7.1)

0.2 (2.3) 2.1 (9.9)

0.5 (3.2) 1.9 (8.5)

0.7 (3.3) 2.2 (10.8)

0.2 (0.7) 2.5 (8.0)

0.5 (1.9) 1.9 (7.0)

0.1 (0.4) 1.5 (5.9)

0.2 (1.0) 1.2 (5.1)

0.1 (0.7) 1.1 (4.7)

0.1 (0.6) 0.8 (2.6)

Average Rate 0.3 (1.9) 1.7 (7.0)

13.9 10.3 6.6 (29.3) (26.6) (17.1) Unnecessary Use 4.1 5.0 3.5 of Authority (9.3) (10.6) (8.9) Fabrication of 0.0 1.6 0.6 Evidence (0.0) (6.9) (1.6) Threat 0.7 1.7 0.5 (1.3) (4.3) (1.5) Other Offences 0.0 12.5 3.6 (0.0) (29.4) (10.7) Police 3.0 0.0 50.0 Procedures (50) (0.0) (50.0) Source: The IPCC Annual Reports, 1994–2004

8.4 (19.4) 2.3 (5.2) 0.8 (1.3) 0.5 (1.1) 8.2 (14.6) 11.1 (20.0)

9.5 (22.1) 5.4 (13.3) 0.8 (1.1) 0.4 (1.3) 2.3 (4.3) 6.3 (20.0)

11.4 (25.6) 5.5 (10.8) 0.8 (1.2) 0.0 (0.0) 9.1 (12.5) 5.3 (14.3)

10.2 (21.8) 3.6 (6.6) 0.6 (0.8) 0.0 (0.0) 0.0 (0.0) 8.0 (16.7)

10.6 (23.3) 3.2 (6.3) 0.0 (0.0) 0.0 (0.0) 7.5 (11.5) 0.0 (0.0)

10.8 (28.0) 2.7 (6.3) 0.7 (1.1) 0.0 (0.0) 0.0 (0.0) 0.0 (0.0)

9.9 (25.6) 2.1 (5.2) 0.0 (0.0) 0.0 (0.0) 5.3 (9.1) 18.9 (38.9)

11.0 (24.2) 2.9 (7.2) 0.0 (0.0) 0.0 (0.0) 0.0 (0.0) 16.7 (33.3)

10.2 (23.9) 3.7 (8.2) 0.5 (1.3) 0.3 (0.9) 4.4 (8.4) 10.8 (22.1)

Overbearing/ Impolite Conduct/ Abusive Language Neglect of Duty

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2004 it handled 544 cases (16.9 percent). The turning point for the upswing was in 1999, two years after the change of sovereignty. The complaints jumped from 53 (1.8 percent) in 1997 to 301 (9.8 percent) in 1999, an near six-fold jump. This attests the increasing importance of the court as a checks-and-balances institution in post-1997 Hong Kong. This set of data raised two questions, the first empirical, the second related to policy: first, did civilians really prefer the police process to the independent investigation of complaints against police? Second, if the data truly reflects citizens’ preference for police investigation, are independent civilian reviews still needed? How were complaints disposed of? Table 2.6 showed that few of the complaints were substantiated, either by the IPCC or by CAPO. As might be expected the substantiation rate is higher for minor offenses (impolite conduct—1.70 percent; neglect of duty—10.2 percent) than major offenses (assault—0.3 percent) and more for process violations (police procedure—10.8 percent) than substantive claims (fabrication of evidence—0.5 percent). Overall, the low substantiation rates might mean any number of things, from inability of the IPCC to question CAPO findings of facts independently to most of the complaints being spurious. As to specific kinds of claims, it is hard to prove that an assault occurred but easy to allege an instance of impoliteness. Similarly it is easy to show improper use of authority but very difficult to show fabrication of evidence. Many of the complaints were resolved informally (Table 2.7). In 1994 only 569 cases or 13.7 percent were resolved by informal resolution. Since then the number of informally settled cases has grown: 732 cases (15.8 percent) in 1995, 972 cases (19.2 percent) in 1996, 1,016 cases (20.9 percent) in 1997, 1,090 cases (26.0 percent) in 1998. The percentage of cases settled remained at over 20 percent between 1999 (1,272 cases, 23.6 percent) and 2004 (1,219, 20.9 percent). This suggests that most complainants were not interested in a full-scale investigation, only in an honest acknowledgment of the humiliation inflicted or in the rendering of a sincere apology for inconvenience caused.75 Table 2.7

Number of Cases Resolved by Informal Resolution Endorsed by the IPCC: 1994–2004

1994 (% to total)

1995 (% to total)

1996 (% to total)

1997 (% to total)

1998 (% to total)

1999 (% to total)

2000 (% to total)

2001 (% to total)

2002 (% to total)

2003 (% to total)

2004 (% to total)

569 (13.7)

732 (15.8)

972 (19.2)

1,016 (20.9)

1,090 (26.0)

1,272 (23.6)

1,425 (24.0)

1,491 (24.4)

1,669 (26.9)

1,539 (24.6)

1,219 (20.9)

Source: The IPCC Annual Reports, 1994–2004 75  Police informants. Author’s students (2002–2004).

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IV. Conclusion: A Preliminary Assessment This chapter began with the observation that the HKP have pervasive and awesome powers. The existence and exercise of such powers needs to be placed in a broader historical, political and cultural context, to be fully understood, and in turn effectively controlled. Historically, the HKP have always exercised wide-ranging and unrestricted powers, as a result both of traditional authoritarian Chinese culture, e.g., magistrates acting as “father and mother officials” (“fuwu guan”),76 and of an age-old British colonial mentality, i.e., paternalistic governance. As the people of Hong Kong have become increasingly cosmopolitan and the HKP moved further and further from its colonial roots,77 it has been expected that HKP police powers will be increasingly rationalized and bounded, though never to the same extent and manner expected of a Western society. Deep within, Chinese prefer strong government over vocal dissent, structured liberty over spontaneous order, and predictable continuity over uncertain change.78 Politically, order and stability has been important for Hong Kong—a barren rock with few resources and sandwiched between contending economic forces and contentious political powers in the Asia-Pacific realm—to thrive as an international seaport (1870s), industrial city (1950s–60s), trading depot (1970s–80s), commercial town (1990s) and now a world finance center (2000s).79 Hong Kong’s order and stability is built upon a strong government. Hong Kong’s precarious position, first as a colony and now as a Special Administrative Region (HKSAR), requires that “stability and prosperity” be maintained at all costs.80 Thus the HKP have been vested with immense power of social control with few guidelines and nominal restrictions in order to secure political control and maintain social stability. Hong Kong’s geopolitical reality is a factor to be reckoned with when seeking a better accommodation of social order, police powers and citizens’ rights, post-1997. Culturally, imperial China has no concept of individual rights and did not practice the rule of law. Hong Kong, as a traditional Chinese society was ordered by Confucian ethics.81 This inevitably led to police abuse of powers.82 For example, in 76  John R. Watt, The District Magistrate in Late Imperial China (New York: Columbia University Press, 1992). 77  Lo and Cheuk, “Community Police in Hong Kong,” p. 97. 78  J. Cheng, “The Future of Hong Kong: Surveys of the Hong Kong People’s Attitudes,” Australian Journal of Chinese Affairs, 12 (1984): 113–42. 79  Tony Fu-Lai Yu, Entrepreneurship and Economic Development in Hong Kong (London and New York: Routledge, 1997). 80  M.K. Chan, “Review: Stability and Prosperity in Hong Kong: The Twilight of Laissez-faire Colonialism? A Review Article,” Journal of Asian Studies, 13(3) (1983): 589–98. 81  Lau and Kuan, The Ethos of the Hong Kong Chinese, p. 4. 82 Anonymous, Bu Fang Hou Sheng (Police station water boy) (Hong Kong: Ba Ling Publishing, n.d.).

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earlier years police officers in Hong Kong could shoot at will and destroy people’s property without having to offer compensation.83 In more recent times citizens prefer settling complaints to confrontation. This is counter-balanced by the fact that the people of Hong Kong are becoming increasingly rights conscious, post1997, as indicated by increased judicial intervention into police abuse cases. Hong Kong people have a right to be concerned about unchecked HKP police powers. The free exercise of such expansive and coercive powers in performing multi-faceted duties as imposed by law or at the request of the public affects people’s daily lives. However, policing the HKP suffers from a number of obstacles. Police defend their professional independence and different views abound on how much and how the police should be controlled. Two major factors make policing the HKP difficult. First, there is a gross lack of valid and reliable data on the nature and extent of police misconduct. Public opinion of the performance of the HKP is based mostly on unreliable and invalid information, from personal encounters to friends’ experiences to media reports. Second, there is a lack of agreement on what police accountability means. How much power should the police possess in maintaining law and order? How much individual right should a citizen possesses as he/she goes about conducting his/her business in a peaceful manner? To whom should the police be held accountable— HKSAR, local villages, victims of crime or justice institutions? By what standard should police misconduct be judged—legal, moral, ethical, communal, professional, administrative, peer? The difficulty with setting police accountability standards is exacerbated by problems of conflicts of culture and interests. In the past conflict had to do with British vs. Chinese cultural expectations. For example, the British detest corruption as an affront to the law while Chinese accept corruption as a price to be paid to maintain good guanxi.84 Post-1997, the conflict has had to do with traditional values vs. progressive ideas and ideals. For example, while Western trained democrats in Hong Kong have complained, vocally and repeatedly, about the HKP using “draconian” measures in controlling mass demonstrations, local residents in general, and Chinese business elites,85 have applauded the HKP in taking “prudent” measures to safeguard the stability and prosperity of Hong Kong. Overall, the police accountability system and process in Hong Kong, in the guise of the IPCC and CAPO, is very well established and functions adequately. This is evident from the fact that the public has overwhelmingly preferred to invoke the police CAPO complaint process than the independent IPCC and Legco one. There is certainly room for improvement, however, for example in the substantiation rate. The low rate may be due to the fact that many of the valid complaints were settled 83 Andrew, Hong Kong Detective. 84  Rance Lee, “The Folklore of Corruption in Hong Kong,” Asian Survey, 21(3) (1981): 355–68, 357. 85  Leo F. Goodstadt, Uneasy Partners: The Conflict Between Public Interest and Private Profit in Hong Kong (Hong Kong, Hong Kong University Press, 2009), Chapter 1.

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through internal discipline or an expressed apology. In this regard, Chinese culture in general and Hong Kong ethos in particular prefer to negotiate and compromise on things rather than engage in confrontation and litigation. Viewed in this light, the confrontational and legalistic approach adopted by some of the “progressive” (e.g., Human Rights Watch) and “liberal” (e.g., Democratic Party) elements of the community is certainly the exception rather than the norm. Looking ahead, future research in Hong Kong on police accountability would do well to progress on three fronts. First, by conducting survey research on the nature, incidence and prevalence of police misconduct in Hong Kong. Second, by conducting empirical research and behavioral analysis on the causes of police misconduct. Third, by setting standards and devising methods to measure the effectiveness of the current complaints against police system.

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Chapter 3

Controlling Police Use of Force Introduction This chapter investigates the prevalence, regulation and control of the HKP use of force. It is organized into five sections. The first contains a brief literature review, which is followed by some discussion and reports on the use of firearms by the HKP. Next, the chapter explores the administrative supervision practices with respect to use of force, as informed through a case study. Review of the political and legal controls over use of force follows and the chapter concludes with some recommendations on research, practices and policies regarding police use of force in Hong Kong. I. A Brief Literature Review A comprehensive review of literature uncovers very few systematic studies of the Hong Kong police, especially on the use of force.1 The few exceptions include Police Powers in Hong Kong: Problems and Prospects,2 Criminal Procedure in Hong Kong,3 and a few law reform commission reports on police abuse of powers (e.g., Report on Confession Statements and Their Admissibility in Criminal Proceedings). 4 In addition, there are two academic papers on police use of force and both are theses in criminology from Hong Kong University. Both were written by (then) serving police officers. The first, Use of Firearms in the Royal Hong Kong Police: An Examination of Patterns and Police Attitudes (Ting 1988)5 deals with patterns of and attitudes toward firearms use in the HKP between 1983 and 1986. The second, Police Discretion: Application of Deadly Force (Chan 1996),6 1  Lau Siu-Kai, Wan Po-san and Shum Kwok-cheung, Hong Kong Politics: A Bibliography (Hong Kong: Hong Kong Institute of Asia Pacific Studies, Chinese University of Hong Kong, 1999); Kam C. Wong, Policing in Hong Kong: History and Reform (Taylor and Francis, Forthcoming), Chapter 2: “Studying of Hong Kong Police.” 2  R. Wacks (ed.), Police Powers in Hong Kong: Problems and Prospects (Hong Kong: University of Hong Kong School of Law, 1993). 3  G.N. Heilbronn, Criminal Procedure in Hong Kong (Hong Kong: Longman, 1998). 4  Law Reform Commission, Topic 8: Report on Confession Statements and Their Admissibility in Criminal Proceedings (December 14, 1984). 5  L. Chan, “Police Discretion: Application of Deadly Force,” Masters Thesis, Social Science (Criminology), Department of Sociology, Hong Kong University (1996). 6  Ibid.

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focuses on the development of HKP firearms policy and determinants of shooting decisions. II. Hong Kong Police and the Use of Firearms The use of firearms by officers in the line of duty is rare, with approximately 20 to 30 incidences per year. Ting (1988) reports a total of 109 shooting incidents from 1983 to 1986 (29 in 1983, 30 in 1984 and 1985, and 20 in 1986), excluding special operations and not in the line of duties, 90 by officers.7 Further, Chan (1996) documents a total of 152 shooting incidents from 1990 to 1995 (31 in 1990, 28 in 1991, 30 in 1992, 27 in 1993, 26 in 1994, and 10 in 1995).8 In terms of precipitating events, Ting reported that the use of firearms by police officers was most often associated with robberies (27 shootings), followed by vehicle related offenses (14), suspicious persons (10), offenses against persons (7) and burglaries (5), excluding those incidents tasked by radio, informed by public and special operations.9 Regarding the reasons for the shootings, threat to life accounted for 241 shots, followed by preventing the escape of a suspect (18 shots), an escaping vehicle (11 shots), and accidental discharge (7 shots)—a total of 277 shots fired from 1983 to 1986. Of the 277 shots fired, only 15 rounds discharged by eight officers were classified as unwarranted.10 Further, in a non-random sample of 200 HKP officers, it was found that 76 officers had drawn their revolvers in the line of duty resulting in six shooting incidents, but only 22 had reported it through the chain of command. When firearms were drawn, they were for protection and arrest reasons.11 Finally, a survey of major newspapers by Wong (1997–2000) found that in Hong Kong, from 1963 to 1998, 123 firearm cases (snatch service revolver, shoot at police, shoot at criminals, weapons drawn) were reported, of which there were 68 “defensive” use of firearms by HKP. (case 3, 4, 5, 8, 9, 10, 11, 13, 14, 18, 19, 20, 21, 25, 26, 30, 31, 39, 40, 41, 45, 46, 47, 48, 49, 50, 51, 53, 54, 56, 58, 61, 63, 69, 70, 71, 72, 75, 78, 79, 80. 81, 83, 84, 85, 86, 87, 91, 94, 95, 96, 97, 100, 101, 102, 103, 105, 106, 111, 112, 114, 116, 118, 119, 120, 121, 123.) 12 The conclusion 7  H. Ting, “Use of Firearms in the Royal Hong Kong Police: An Examination of Pattern and Police Attitudes,” Masters Thesis, Social Science (Criminology), Department of Sociology, Hong Kong University (1988), p. 27. 8  Chan, “Police Discretion: Application of Deadly Force,” p. 8. 9  Ting, “Use of Firearms in the Royal Hong Kong Police: An Examination of Pattern and Police Attitudes,” p. 40. 10  Ibid., p. 43. 11  Ibid., p. 70. 12  HKP Defensive Use of Force: 1963–1998 Project, Chinese Law Program, Chinese University of Hong Kong (1997–2000). The survey includes all cases in which a police

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is clear: firearm use by or on police was very rare, on average less than 3 (2.7) cases per year were reported in the news (Appendix II). However, more recent accounts recorded far less than the official data and still less than the self-reported survey. In as much as incidents of police use of firearms are serious for both the police and the public, such a large disparity needs to be investigated further, and thus accounted for. III. Administrative Supervision of Use of Force Incidents As a general rule, all use of force incidents involving HKP officers are subjected to meticulous and stringent internal reporting and review (Appendix I). For example, a use of force report is filed immediately following each instance and shooting cases are subject to the most detailed scrutiny at senior levels, receiving the personal attention of the Deputy Commissioner of Police Operations.13 Use of Force Continuum As a general rule only HKP officers who have been properly trained and equipped are allowed to use weapons or arms of any sort. Police can only use force when, considering the totality of circumstances, it is deemed “necessary” and “reasonable” to do so. This means that any use of force should comport with the use of force continuum (see Table 3.1) which is defined as “a series of closely linked and escalating options of force to be considered by an officer.” More specifically the use of force is to be assessed within the context of the following factors: 1. 2. 3. 4. 5. 6.

level of resistance perception of threat officer’s ability minimal force progression and proportion last resort

firearm was involved in a police vs. citizen encounter, including assault on police with firearms and the snatching of police revolvers. 13  FPM (Force Procedure Manual) 29–05 “Police Open Fire – Reporting and Investigation,” 2007/02.

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Table 3.1

Use of Force Continuum – Hong Kong Police

Levels of Resistance

Definitions

Levels of control

Methods Suggested

Psychological intimidation

Non-verbal manner indicating attitude, readiness or threat

Verbal advice/ Control

Officer presence/ Erection of barriers/ Verbal direction

Verbal noncompliance

Verbal response showing unwillingness, abuse or threats

Verbal advice/ Control

Officer presence/ Erection of barriers/ Verbal direction/ Reinforcement

Passive resistance

Physical inaction Soft restraint designed to obstruct control but not threaten

Removal by two or four officers/ Soft empty-hand techniques (pressure point control/escort position/transport wrist lock)/ Quick cuffing

Defensive resistance

Physical action Hard restraint intended to prevent control control, might cause injury to oneself or others

OC Foam/ Hard empty-hand techniques (palm heel strike/stunning/knee strike/front kick/angle kick)/ Straight arm bar takedown/ Iron wristlock takedown

Active aggression

Physical assault not intended to cause serious bodily injury

(i) Hard restraint control or (ii) Intermediate weapons

OC foam/ Hard empty-hand techniques (palm heel strike/stunning/knee strike/front kick/angle kick)/ Straight arm bar takedown/ Iron wristlock takedown/ Use of baton

Deadly force assault

Assault intended to cause death or serious bodily injury

Deadly force

Use of firearm

Source: Hong Kong Police General Orders 29–2

Use of Firearms Investigation Process Following a case that involves the use of firearms, an investigation is carried out by the Division Commander and reported to the Deputy Commissioner of Police

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Operations by and through the Regional Commander. The use of police firearms principles are contained in the Police General Orders (PGO), which mandates that firearms can only be used under the following conditions: a. to protect any person, including himself, from death or serious bodily injury; b. to effect the arrest of any person who the officer has reason to believe has just committed a serious and violent crime, and/or who attempts to evade such arrest; or c. to quell a riot or insurrection, provided that no lesser degree of force can achieve this purpose. The three main questions to be addressed in an open fire investigation focus on the purpose of the use of firearms, determining whether the minimum degree of force necessary to achieve the purpose was used, whether the use of force ceased once that objective was achieved, and whether use of force was reasonable given the circumstances. To facilitate internal investigations and eventual decisionmaking, the police officer who opened fire is required to make a statement that covers the following: a. b. c. d. e. f. g. h. i. j. k.

what the officer saw and heard; the sequence of events leading up to the incident; why and at what stage the revolver was drawn; verbal warnings given prior to the open fire; how many rounds were fired; reason for opening fire for each shot; distances involved and positions of participants; available cover (if relevant); obstructions (e.g., passersby, vehicles, lamp-posts etc.); lighting, visibility and weather conditions; point of aim (all officers should be aware that it is part of their training to open fire at center body mass and not at extremities); l. any action taken immediately after the incident which is directly relevant to the open fire; m. what briefing and instructions were given, if the incident resulted from a pre-planned operation. Reasonableness in the Circumstances There are two kinds of reasonableness test: subjective and objective. Subjective reasonableness requires investigating what the officer knew, perceived, felt and thought at the moment, leading him or her to shoot;14 consistent with other countries, 14  PGO 2008.

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the test of reasonableness is subjective in Hong Kong. When determining whether the use of force was reasonable, the following factors are considered: a. The circumstances leading up to the decision to open fire are important, including any briefings given to the officer and his/her own observations. b. What is going through the officers’ mind? c. How did the officer see the incident developing? As a matter of law, the term “reasonable in the circumstances” comes from Section 3(1), of the Criminal Law Act 1967 (“a person may use such force as is reasonable in the circumstances in the prevention of crime, in the lawful arrest of offenders or of suspected offenders or of persons unlawfully at large”) and has been interpreted as a matter, based on the facts, to be determined by the jury, but not the judge. The determination of reasonableness includes a proportionality test (i.e., the force used should be proportional to the danger or genuinely perceived danger confronted by the officer). Further, the controlling precedent in Hong Kong on the right to use deadly force is the leading authority and the decision of the Privy Council in Palmer v R. according to Lord Morris: … the defense of self-defense is one which can be and will be readily understood by any jury. It is a straightforward conception. It involves no abstruse legal thought … It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but may only do, what is reasonably necessary. But everything will depend on the particular facts and circumstances. Of these a jury can decide … If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken.15

Firearms Investigation in Practice: A Case Study The following case study will help to illustrate the issues involved in a firearms investigation: This is a report of the investigation of an incident of Police Open Fire following a case of Burglary which occurred at … Tin Sin Sight-seeing Trading Co. between 0035 and 0300 hrs on 3rd May, 1986. Two Chinese males were found loitering at the rear lane of the above building. PC X together with S/Sgt Y was on guard in the vicinity. Then, PC X saw a man coming out from the rear lane and joined with two other men. So, he chased after him. Consequently, PC X fired three shots from his police revolver toward one of the men. He was later arrested.16 15  Privy Council in R v Palmer (1971) AC 814. 16  Ting, “Use of Firearms in the Royal Hong Kong Police.”

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Following this submission, the Superintendent in charge filed the following report: “I am satisfied that PC X had the strong impression that a serious crime had been committed when he chased after the men. Considering all the circumstances, the fact that a serious crime had indeed been committed and a third man arrested directly as a result of the chase, I have considered that after the culprit had failed to fire after PC X fired the first two shots that he might have held back with regard to the third. However, all three shots were fired in a matter of seconds. Any culprit who faces an armed police officer with what appears to be a pistol must realize the chance he is taking.”

A more senior police administrator added in another report: “Bearing in mind the time of the incident, the fact that the officer was alone and had been engaged in a lengthy pursuit, the young age of the officer (23 years old) and his inexperience of service only a few months had been spent in a land division, and most important of all considering the officer’s state of mind, I am firmly of the opinion that no disciplinary action should be contemplated in this case, but that the officer be given suitable advice.”17

If we were to conduct an independent review in respect of the “reasonable under the circumstances” rule, the case raises some unsettling factual and unresolved (applied) legal issues. First, the PC did not have sufficient information to justify taking the decision to shoot. From the initial report, it appears that the PC shot the suspect because he was found loitering in and around an alleged burglarized building at night, and started to run away from the police. At the time of shooting neither the existence nor the seriousness of the crime had been established. More damningly, there was no evidence to link the man directly with the burglary. The only reason the man was shot was he fled the crime scene on the approach of the police. The facts of the case warranted a police inquiry. However, the question remains whether the PC was justified in shooting at a loitering man fleeing the police under suspicious circumstances. Further, the PC gave no warning before shooting. This is in violation of HKP standing orders. Finally, the PC continued to fire, even though the first shot may have been sufficient to stop the suspect. Ultimately, it seems that under the circumstances the PC overreacted. It also appears that the senior officers cleared the PC not (entirely) on legal considerations but based (mostly) on compassionate grounds (giving a second chance to an inexperienced but zealous young officer doing his best to fight crime). In doing so, the HKP has confused “subjective” 17  Ibid.

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reasonableness with “objective” reasonableness, and can hardly be said to have decided the case based on the totality of circumstances. The official position in this particular case suggests bias in favor of the police. Senior officers in the case were unwilling to second guess the street officer and as eager to give him/her the benefit of doubt. Reviewing officers considered subjective perceptions enough to conclude motive and intention and personal (in) experience an additional influencing factor. IV. Political and Legal Control of the Hong Kong Police This chapter has thus far focused on HKP internal administrative regulation. Such regulation is further subjected to external check and supervision by domestic political oversight and international legal constraints. Political Control Legislative Council (Legco) members are entitled to raise questions or make comments in the Council concerning any aspect of HKSAR (Hong Kong Special Administrative Region) activities—including the HKP’s policies, practices and procedures, and individual officers’ actions.18 Such questions and comments are responded to by the HKP through the Security Bureau. Alternatively the Legco Security Panel can discuss a police matter with the HKP via the Security Branch. Media Exposure Civic and interest groups are also known to investigate police abuses. For example, in 1993, the Human Rights Commission filed the Hong Kong Human Rights Report (1993), reporting: “In February 1993, during a police operation, two off-duty customs officers, for no reason, were handcuffed and beaten up by police in a restaurant and at the police station respectively. The two victims were beaten separately by about ten policemen using electric torches and batons. They were cuffed and kicked into semi-consciousness. They were charged with resisting arrest, obstructing police carrying out their duties and assaulting police officers.”19

18  Kathleen Cheek-Milby, A Legislature Comes of Age (Hong Kong: Oxford University Press, 1995). 19  Hong Kong Human Rights Commission, Hong Kong Human Rights Report 1993 (Hong Kong: Hong Kong Human Rights Commission, 1993).

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Legal Control International law The Hong Kong Special Administrative Region and the HKP are governed by international conventions by virtue of the Basic Law. The Joint Declaration between the UK and the People’s Republic of China in 1984 on the future of Hong Kong contains the following provision under Annex I, Part XI: “The application to the Hong Kong Special Administrative Region of international agreements to which the People’s Republic of China is or becomes a party shall be decided by the Central People’s Government, in accordance with the circumstances and needs of the Hong Kong ….” This means that Hong Kong Police powers, in legislation or practice, must conform with international conventions, such as the International Covenant on Civil and Political Rights (ICCPR), or be subject to challenge in a court of law. Fundamental domestic laws The rights of citizens are guaranteed under the Basic Law of the Hong Kong Special Administrative Region (promulgated on April 5, 1990), the Bill of Rights (Hong Kong Bill of Rights Ordinance (Cap 383)) and other domestic laws of Hong Kong, e.g. Police Force Ordinance and Crimes (Torture) Ordinance (Cap 427). Criminal law HKP officers are subject to criminal prosecution for the illegal use of force. In the case of HKSAR vs. Chuen Lai-Sze and 3 Others, MA 470/98, September 26, 1998, four officers of the Special Duty Squad were found guilty of assaulting a drug offender causing actual bodily harm. The judgment in the case provided extensive discussion of what happened and why the officers ran afoul of the law. V. Conclusion This chapter investigates how HKP use of force is conducted and controlled. It finds that the HKP has established a very tight administrative control system to monitor police firearm use, with a continuum of force doctrine as an operational guide and the common law determination of whether or not its use was “reasonable under the circumstances” as a judicial review norm. In general, the control of HKP use of force is mainly an internal administrative affair. This study finds several problems with HKP use of force policies and procedures. First, policies and procedures are outdated. As currently structured, Hong Kong Police General Orders do not follow best practices worldwide. Specifically, the orders do not allow bypassing use of force steps based on the totality of circumstances that might warrant/necessitate such a move. For example, it does not allow for any pre-emptive use of force for deterrent purposes in crowd control situations. By comparison, the US Federal Bureau of Investigation has

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moved beyond the sterile, stepwise use of force continuum and now relies on the “Wheel Variants of Non-Linear Continuums” scheme based on “Perceptual Continuums.” Second, Police General Orders has not been reconciled with judicial decisions and community expectations. As currently written, street officers would have difficulty applying PGO 29–2 (continuum use of force framework) because there is no attempt to reconcile PGO 29–2 with Hong Kong court decisions, on the one hand, and community expectations on the other. With the former, PGO 29–2 is a purely administrative, and not legislative, scheme and it has never been tested in court. While PGO 29–2 is designed to provide concrete guidelines on the use of force based on court rulings, following PGO 29–2 will not stop courts from examining the reasonableness issue as it relates to police officer’s decisions to use force. As to the latter, the Hong Kong population is 98 percent Chinese and the use of force continuum is a 100 percent Western doctrine. It is an open secret that culturally, the East (Hong Kong) and West (US) perceive criminals and approach the use of force differently (e.g., the Chinese view running away from the police as more seriousness). Third, PGO 29–2 is not an integrative model. The continuum use of force model is built upon uniform and unifying legal principles, such as progressive and proportionate use of force doctrines. It does not factor in other personal (emotion), operational (tactical), professional (image), cultural (respect for authority) and political (public opinion) factors in an integrated and holistic way. Finally, shooting decision reviews are not monitored by the public. Currently, reviews of shooting incidents are in the hands of the HKP alone. As the example illustrated, the HKP is sometimes biased in favor of its officers and more inclined to approve shootings for law enforcement reasons. Future research should include a study of the efficacy of police use of force policies and training, and of the effect of current gun control systems on police decision-making processes and outcomes in Hong Kong. Research findings also indicate that a rule-based approach, however sophisticated and dynamic, is not effective in controlling police decision-making in the street. APPENDIX I 29–05 Police Open Fire – Reporting and Investigation20 Related Orders and Procedures Subject Chapter Reference Use of Force PGO 29 01 Use of Force Continuum FPM 29 02 20  PGO/FPM (Police General Orders / Force Procedure Manual), 2007/02/22.

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Use of Police Firearms PGO 29 03 Drawing or Presenting Police Firearms PGO 29 04 Police Open Fire – Reporting and Investigation PGO 29 05 Post Shooting Stress Management PGO 29 07 Post Shooting Stress Management FPM 11 21 Mandatory Interview and Post Critical Incident Psychological Debriefing Miscellaneous Investigation Reports (MIR) FPM 21 24 Preparation of Investigation Files FPM 21 25 General Guidelines for Taking Statements FPM 21 26 Submission of Initial Report and MIR The Initial Report to be submitted to D OPS within 48 hours of an incident will be in the following format:Reference: Station: On .......... (day, date, time, place) .........., (the police officer who opened fire) of (police station/Formation) discharged a police firearm, namely (type and serial number) resulting in (summarize injuries, damage caused, and arrests made). (2) The facts of the incident as known at present are:(3) Were other police officers in the vicinity? (4) Details of independent witnesses: (5) (To be completed by the Superintendent directing the investigation personally within 48 hours) (a) From your enquiries so far, do you consider the use of the firearm was in accordance with Force Orders; and (b) State your reasons for the above decision and any other relevant points you wish to make based on enquiries so far. (6) Name, rank, post and office contact telephone number of the officer detailed to complete the investigation. Signed: Rank:

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Formation: Date: c.c. RC DC Formation Commander of the officer who opened fire 2. The MIR will be submitted according to the schedule detailed at PGO 29–05 paragraphs 7–10. Following examination by D OPS, the MIR will be returned to the RC with directions on additional action to be taken, if any. On completion of action taken, the MIR is to be sent to CRB through SP WTDIV for filing. The officer involved in the POF will be informed of the result of the investigation as soon as possible. 3. If, at any time prior to the expiry of the deadlines detailed in PGO 29–05, it appears that a delay may be incurred an officer may apply to the next senior officer (copying his request to D OPS) for an extension. An Interim Report may be called for in these circumstances. Investigation Procedures As far as possible one statement is to be taken from the officer or officers who opened fire to cover both the crime and POF aspects. Statements are to be recorded in an environment conducive to the officers being interviewed bearing in mind that such incidents often have a traumatic affect on the officers involved and that statements may be disclosed to the defense in any related court case. Therefore such statements should only be recorded when they can be fully and accurately taken. 2. To assist in this and to enable SP WTDIV to analyze each open fire case the “Checklist” detailed at Annex “A” of “An Aide Memoire for Investigating Officers” issued by D OPS (Support Wing) will be included as an enclosure in the MIR. One checklist is to be completed for each officer who opened fire. 3. The MIR shall deal solely with the discharge of police firearms. Any criminal matter or judicial process arising from the same incident shall be investigated as an entirely separate issue. Officers responsible for compiling or commenting on the POF MIR shall ensure that:(a) the circumstances leading up to the use of the firearm are fully investigated and documented, and all discrepancies and ambiguities clarified;

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(b) where appropriate, details of intelligence known or briefing(s) given to the officers involved are included; (c) any apparent gaps in training, equipment, preparation, tactics employed or flaws in existing orders or procedures are highlighted; and (d) any recommendations which would assist in ensuring mistakes are not repeated and, more importantly, that other officers are not exposed to risk are included. 4. The decision to place an officer on duties which do not involve contact with firearms shall rest with the officer’s Formation Commander after consultation with the DVC in whose area the incident took place, if appropriate. Open Fire Cases An Aide Memoire for Investigating Officers 1. This Aide-Memoire has been prepared as a result of concern at the inconsistent standards of MIRs on POF being forwarded by formations. It is hoped that the guidelines will be useful as a reference for investigating officers. It is not intended that the whole applies in each case, common sense should prevail when selecting material. Introduction 2. The need for thorough, balanced and open-minded investigation of all open fire incidents cannot be over emphasized. The Commissioner attaches great importance to the investigation of open fire cases and the ability of the Force to show that every case is meticulously and impartially examined. MIRs are compiled at District, Regional and Force levels and are subject to the most detailed scrutiny at senior levels, receiving the personal attention of the Deputy Commissioner of Police Operations. In cases where death has occurred, all the facts will be presented to a Coroner’s court. No effort must be spared in conducting the investigation and conclusions reached must be supported by facts. Investigating officers should realize that the investigation of the open fire aspect is entirely separate from any criminal investigation that may be conducted. Procedures for Investigation 3. Procedures for investigation are outlined in PGO and FPM 29–05. Guidelines for the compilation of MIRs are contained in FPM 21–24/25 and Chapter 10–02 of the Police Manual.

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Investigation Officer 4. The level and rank of investigation officers is determined by PGO 29–05. While this order is straightforward it is important to ensure, particularly in cases where injury or death is involved, that the officer appointed to conduct the investigation is of appropriate experience. Objectives 5. The primary objective of a police open fire investigation is to establish if under the circumstances the use of the firearm was in accordance with Force Orders. This decision is taken by D OPS based upon the recommendations of the investigating officer, the DC and RC. This manifests itself as a clinical examination over a period of a few weeks, of what happened, probably in seconds. In this respect, investigating officers should be aware that the decision to open fire is made in a split second as opposed to the detailed investigation procedures which usually take a great deal more time. The Use of Force 6. The use of police firearms is generally prescribed in PGO 29–03 and subject to the principles of the use of force in PGO 29–01. These are legal requirements with the only definitive ruling being one from a Court of law. Consequently, whenever a case is pending a hearing in Court (civil or criminal), the formal police decision on whether the shooting is in accordance with Force Orders or not normally waits until legal proceedings have finished. This delay is frustrating but beyond police control. 7. In order to substantiate your findings it is essential that the following points be continually kept in mind (a) it was the minimum degree of force necessary to achieve the purpose and ceased once that objective was achieved; and (b) the use of that degree of force was reasonable in the circumstances. 8. In the main (a) presents few difficulties. However, as “reasonable in the circumstances” is a more subjective evaluation it has to be carefully considered. The circumstances leading up to the open fire are important including any briefings given to the officer and his own observations. This will give a clear indication of what is going through the officer’s mind and how he saw the incident developing. It is as a result of what he sees, hears and forms an opinion about that he may resort to the use of his firearm. The term “reasonable in the circumstances” includes an

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element of proportionality in that the force used should be proportional to the danger or genuinely perceived danger confronted. Shooting to Wound 9. Officers have stated that they fired at the hands, arms or legs of their targets. This is a humanitarian consideration that is confused with “minimum force.” Having passed the threshold at which recourse to firearms becomes necessary, this surely avoids inflicting no more injury than is required to subdue an adversary. A person shot in the lower limb or arm could still pose a risk, or present a greater risk or threat to others including police. It is probable that many officers believe that they may be subject to criticism if they say they fired at the body. An officer who opens fire in accordance with Force Orders is justified in shooting at the center of the largest body mass visible. Current firearms training follows this principle. Shooting in Crowded Areas 10. A police officer who opens fire in a crowded area could put innocent bystanders at risk. This type of incident needs careful evaluation. Current training is to exercise restraint and avoid injuring bystanders. Where there is a possible risk of hitting someone else the firearm should not be used. The officer opening fire should have a clear unobstructed view of his target but also consider the dangers of ricochet or wrong targeting. Shooting at Vehicles 11. A police officer fires at a specific target, a person, and not the vehicle. Firing at a vehicle is difficult with regard to achieving your legitimate objective and could result in an increased risk of injury if the vehicle continues out of control e.g. driver shot. More often than not officers fire at vehicles to protect themselves from being hit—this begs the question whether or not the officer has put himself into that position in the first place and, consequently, whether or not the subsequent open fire was strictly necessary. Guidelines can be found in D OPS’ LM(1) in CP 214/84 Pt.10 dated 25.4.1994. Suicides 12. The use of police firearms to commit or attempt suicide is clearly not in accordance with Force orders. However, the formal classification does not need to be given. An MIR examining the police open fire aspect is generally unnecessary. Instructions can be found at PGO 29–05, paragraph 2.

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Drawing/Presenting Firearms 13. The drawing or presenting of a firearm is governed by PGO 29–04. In each case the DVC shall look into the circumstances and only if there are indications that the action is improper will an MIR be compiled. Statements are not required and the DVC may consider verbal debriefings adequate. Statement 14. Statements in open fire investigations fall into four categories, namely:a. those from officers who have opened fire; b. those from police officers and civilians who have actually witnessed the incident; c. those from specialist witnesses involved after the event such as ballistics officers, chemists, pathologists and doctors; and d. on occasions, those from persons suspected of involvement in crime. For example relevant cautioned statements. 15. When a statement is to be taken from an officer who has opened fire, a common sense approach must be adopted. Care must be taken to ensure that statements of the officer who opened fire and principal witnesses are taken by an officer of appropriate rank and experience. It is pointless to attempt to take a detailed statement in the immediate aftermath of an incident. The officer who has opened fire is almost certain to be under great stress and probably in a state of shock. All officers who have opened fire, even those who appear outwardly calm, should be given an opportunity to calm down and consider what has occurred. 16. On occasions, the statements of officers who were justified in opening fire show a reluctance to admit to facts that are consistent with medical, ballistics and witnesses evidence. It is quite understandable that an officer will be apprehensive and in fear of criticism or more serious consequences of his open fire. A prestatement interview with an officer who opened fire is most important to ensure that the officer who opened fire makes a statement that is true and consistent with the other evidence. Officers who have sustained injury, regardless of how slight or superficial, must be sent for medical treatment first. 17. It is appreciated that investigating officers are working under the pressure of deadlines to produce reports. However, in the majority of cases it is possible to garner a reasonable account of what has happened from statements of witnesses and an interview with officer(s) who opened fire. Details of the interview should be recorded.

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Statement Content 18. Statements must be comprehensive and contain any material which may be useful in providing an overall picture and better understanding of what has occurred. Checklist 19. Investigating officers will find that the items covered in the “Checklist” attached to this Aide Memoire, which is to be included in each MIR, contains many pertinent points to be covered for both criminal investigation and POF purposes. One “Checklist” is to be completed for each officer who opened fire. Statements from Officers who have Opened Fire 20. Statements from these officers should contain details of the following:a. b. c. d. e. f. g. h. i. j. k.

what the officer saw and heard; the sequence of events leading up to the incident; why and at what stage the revolver was drawn; verbal warnings given prior to the open fire; how many rounds were fired; reason for opening fire for each shot; distances involved and positions of participants; available cover (if relevant); obstructions e.g. passersby, vehicles, lamp posts etc.; lighting, visibility and weather conditions; point of aim (all officers should be aware that it is part of their training to open fire at center body mass and not at extremities); and l. any action taken immediately after the incident which is directly relevant to the open fire. 21. The statement should clearly reflect the state of mind of the officer before, at the time and after he opened fire. Additionally, if the incident resulted from a preplanned operation, what briefing and instructions were given. These last points are important and frequently overlooked. Statements from Police and Other Eye Witnesses to the Incident 22. Statements from these witnesses should contain: a. the sequence of events leading up to the incident, the incident itself and, if relevant to the open fire; b. verbal warnings heard;

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c. d. e. f. g.

anything seen or heard relevant to the incident; lighting, visibility and weather conditions; pedestrian and/or vehicular traffic; distances; and vantage points, positions.

23. Eye witness accounts are often fragmentary with the witness having seen only part of the incident. Investigating officers should check the full sequence of events before concluding what the witness has, in fact, seen. Statements from Specialist Witnesses after the Incident 24. Statements of Ballistics Officers, Chemists, Pathologists and other experts are normally self-written. However, if conclusions or opinions can be drawn based on the witnesses’ expertise or experience, then these should be contained in the statement. Questions 25. When the witness has finished his statement the recording officer should read through it and decide:a. Is it complete to his satisfaction? b. If there are any errors, ambiguities, inconsistencies or omissions that should be clarified or corrected. 26. Where possible, statements should refer to maps, sketches or photographs of the scene to describe the exact nature of the incident. Photographs 27. In open fire cases photographs are used to relate, illustrate, present, prove and corroborate facts. They are virtually an indispensable aid in the investigation and subsequent presentation of open fire cases. General guidelines for such photographs are that they should:a. be specific to the open fire; b. be taken where possible, in the company of the officer who opened fire or an eyewitness to what has occurred; c. be taken, where possible, in conditions similar to those prevailing at the time of the incident; d. be clearly described on the file; and e. be cross referenced to a sketch plan of the scene.

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Video Reconstruction 28. In certain circumstances a video reconstruction can be invaluable in giving a clear impression of a sequence of events, particularly to witnesses. However, extreme caution should be exercised in carrying out a video reconstruction if there are related criminal proceedings. Sketch Plans 29. Sketches should indicate:a. b. c. d. e. f.

scale; distances, as accurately as possible; positions of witnesses and parties to the open fire; position of exhibits; position of vehicles, furniture, etc; and direction of flight/pursuit if applicable.

Post-mortem, Ballistics, Chemists’ Reports etc. 30. Although not always available at the time of MIR compilation, it is often possible to get a verbal indication from the Chemists, Ballistics officers and officers present at the Post mortem as to whether or not the finished reports will contain anything of value to the open fire investigation. Mention of verbal indications in the covering report or associated minutes can often obviate delays in file submission, conclusions being drawn and recommendations/classifications being made. The full reports should be used to draw conclusions where possible by matching exhibits, angles of fire, markings on clothes, gun shot residue tests etc. Radio Messages 31. In many cases the exact wording of any radio message advising duties of the movements of armed criminals or suspects and specifically what crimes they are believed to have committed is relevant in order to appreciate the state of mind of the officer who confronts the criminals. The need for Radio Discipline has often been remarked on in police open fire cases and guidelines can be found in D OPS (67) in CP 34/41 Pt.5 dated 19.10.1995. 32. In such cases, transcripts of the relevant messages should be included in the file. Investigating officers should remember that recordings of radio/telephone conversations are only kept for two months by RCCCs before they are erased. If there is a court case where this evidence is required, the original tape should not be erased until after completion of all court action, including any appeal period.

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Related Police Action 33. The investigating officer should consider any other relevant aspects, such as whether or not adequate briefings were given to the police officers involved. Additionally consideration should be given to the adherence to correct tactics, training needs and effectiveness of equipment. Role of Post-Shooting Stress Manager (PSM) 34. Investigating officers should be fully aware of the role and responsibilities of the PSM at the very outset of any police open fire investigation. This role is defined at PGO 29–07 and FPM 11–21. Compilation of Files 35. Investigation files in open fire cases are to be prepared in accordance with FPM 21–24/25. Covering Reports 36. The objectives to remember in preparing a covering report are simplicity and clarity. The report should be complete in itself and readily comprehensible without the need to refer to any enclosure in the file. 37. The following headings will cover most of the circumstances arising in open fire investigations:(a) Introductory Matters This is a general introduction as to how the incident first occurred. It is very important that the officer compiling the report remembers that the objective is to detail the open fire aspects of an incident and not the circumstances of a crime. Details of briefings given and intelligence known at that time are, therefore, important. This information will affect the appreciation of a situation by the officer that opened fire. (b) Eyewitness Accounts At this point the evidence of officers involved and any other eyewitnesses is included. There is no need to summarize each witness statement and only relevant matters should be raised. Any contradictory statements whether between witnesses or within statements should be noted and mentioned in the report. (c) Evidence of a Formal Nature Under this heading include the following subjects:-

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i. Photographs; ii. Plans; iii. Medical Reports - mention the seriousness of injuries and the condition of victims at the time of writing the report; iv. Exhibits List; v. Pathologist’s Report; vi. Chemist’s Report; and vii. Ballistics Report. (d) Court Proceedings It should be remembered that courts often comment on the open fire aspect and this may have an impact on the final classification of the shot(s). As such, the MIR should include reference to any criminal proceedings or Death Inquiry with dates and venues. (e) Conclusions Must relate specifically to the open fire aspects of the investigation. The fact that, for example, the person arrested or shot and killed was a habitually violent criminal is of no consequence to the open fire investigation if the facts do not support the decision to open fire. All facts of the case must be considered prior to a conclusion being reached. (f) Recommendations These should be firm, thorough and succinct with reasons clearly stated. Legal Advice – Death Inquests/Civil Litigation 38. Department of Justice have pointed out the need to consult the Police Legal Advisor upon the necessity of the Police officer concerned and the Commissioner of Police being represented at Court. Attention has also been drawn to the need to prevent statements and covering reports from being passed to third parties, however, in all court cases the contents of the Police Open Fire file should be made available to the prosecutor. 39. When a shooting case is referred to the Coroner or his officer it should also be referred to the Police Legal Advisor (PLA) at the Department of Justice. This will allow the PLA to fully consider the circumstances of the case and advise whether or not the Commissioner of Police should be represented by a Government Counsel at the inquest. 40. At the same time, advice may also be given as to whether the officer who opened fire should be legally represented in his own interests. Legal representation of the officer who opened fire will normally be by a Counsel outside the Department of Justice appointed by the Director of Legal Aid. This requires approval from the

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Secretary for the Civil Service, and, as this procedure takes time, an early referral to the PLA will avoid any need to have to apply to the Coroner for an adjournment. 41. Present practice is to provide the Coroner or his officer with a copy of all statements taken in connection with a death caused as a result of a Police shooting, as well as a copy of the covering report. This is quite proper and the purpose is to assist the Coroner in deciding which witnesses to call at the death inquest. These statements remain the property of the Commissioner of Police, or at least of the individuals who made them, and should not be released to third parties. In particular, they should not be given to any legal representative of the relatives of the deceased who may subsequently use such statements in civil action against the officer concerned or against the Commissioner of Police. There is legal authority that such statements are police property and to release them to third parties is a breach of confidence and trust. 42. In order to protect both the Commissioner’s and officer’s position, when statements and covering reports are sent to the Coroner, or his officer, they should be accompanied by a short note stating that they are provided in confidence for use in conducting the inquest and are not for the use of any other person. The conclusion on a report (i.e. opinion as to whether the police shooting was in accordance with Force Orders or not) has no relevance to the inquiry itself and should be deleted before the report is released. 43. In all cases where a report is sent to the Coroner in connection with an inquest, the investigation file shall contain a statement from the Superintendent, Weapons Training stating: the Force policy on weapons training; the policy on use of firearms; and, the principles of the “Use of Force Continuum.” Advice/Guidance 44. Finally, if advice or guidance on the compilation of the MIR is needed, the following officers should be contacted:a. Your formation commander; b. SP Field (2860 2541); and c. SIP Field II (2860 2163).

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APPENDIX II HKP Defensive Use of Force: 1963–9821 (001) On December 19, 1963 a man resisited arrest and snatched a constable’s service revolver . About 8:30 p.m. on January 14, 1964, the police tracked him down and arrested him after an intense chase. (South China Morning Post [SCMP] January 16, 1964) (002) On the morning on June 3, 1965, six culprits were sent to South Kowloon Court from the Victoria Detention Center. Two of them overpowered a policeman who wa uncuffing them. The snatched the officer’s service revolver and shot at the police officers, injuring two seriously. Eventually, the two suspects were arrested. (Wah Kiu Yat Pao August 14, 1965) (003) At about 10 a.m. on December 8, 1966, a team of policemen were conducting illegal hawkers operations in Chai Wan. Two hawkers were questioned about their license by a sergeant. When the officer attempted to arrest the first hawker, he was treated to foul language and punched in the chest. During the struggle, the second suspect gave the first suspect a chopper and tried to attack the officer with a screwdriver. The other officers protected the sergeant immediately. Unfortunately, one of their pistols was snatched by the second suspect and three shots were fired. Two shots hit the first suspect. Both the suspects were finally arrested. (Wah Kiu Yat Pao January 25, 1967) (004) On December 9, 1967, during the period of the ’67 riots, two police constables were attacked by two mobsters in a temple in Kam Tin. A revolver was snatched and a gun battle ensured. One officer died in the incident. One of the mobster was shot while being arrested, the eluded. (Wah Kiu Yat Pao September 23, 1971) (005) On March 31, 1970, a detective sergeant and a detective went to investigate a complaint in Yau Ma Tei. When the two officers approached the suspect, the suspect attempted to escape. In the chaos, the suspect snatched the pistol of the sergeant and pointed it at him. The detective then fired at the suspect and a gun battle ensued. A total of four shots were fired and the sergeant received a slight injury during the struggle with the suspect. (Wah Kiu Yat Pao May 15, 1970) (006) On December 20, 1970, at about 6.25 a.m., a detective leader attached to the Special Branch of Kowloon Police Head Quarter was attacked by three men at Argyle Street, Mong Kok. They took his gun, bullets and one hundred dollars. The gun, bullets and money were found in a rubbish station in Mong Kok about 21  P.I. Kam C. Wong, HKP Defensive Use of Force: 1963–1998 Project, Chinese Law Program, Chinese University of Hong Kong (1997–2000).

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two hours later, but the three men were never found. (Wah Kiu Yat Pao December 20, 1970) (007) At about 4 a.m. on August 8, 1971, a Special Branch detective was robbed by five culprits aged 18–20 inside a villa in Waterloo Road. They took his service revolver and 12 bullets from a drawer. Other people in the villa were also robbed. (Wah Kiu Yat Pao August 9, 1971) (007) At about 3 a.m. on August 8, 1972, two police constables came across five suspicious people in a car while they were patrolling around Sai Wan. At the same time, two detectives passed by. When the four officers approached the car, the people inside the car threw a grenade toward the officers. Two of the officers were injured. The private car got away. (Wah Kiu Yat Pao September 8, 1972) (008) At about 11 p.m. on August 23, 1972, two robbers robbed a money case at Tsuen Wan. Meanwhile, an anti-triad detective passing by was alerted to the crime in progress. The suspects fled in different directions. The officer followed the one carrying the money case. The officer shot at the robber on the Yeung Uk Road at Tsuen Wan. The suspect pretended to be been shot. When the detective approached, the suspect stabbed him with a knife. At that time, the detective fired two more shots wounding the suspect and arrested him. (Wah Kiu Yat Pao August 24, 1972) (009) On September 1, 1972, a group of gangsters robbed the couples in the Peak. One of the couples sought help from the police. The police mounted a search. The police caught up with the three suspects. One of them took out a knife. The police fired a shot. The gangsters dispersed. They were finally arrested in a nearby restaurant. (Wah Kiu Yat Pao September 15, 1972) (010) At about 10:15 p.m. on October 1, 1972, four gangsters robbed couples at the at Kowloon Chai Park. Two of the culprits held wooden sticks and glass bottles. A plain-clothes sergeant witnessed the incident. One of the gangsters attacked the officer with a weapon. The sergeant fired a shot in defense. After the shot, the gangsters ran away. They were finally caught in the park. (Wah Kiu Yat Pao October 24, 1972) (011) At about 1:30 p.m. on November 23, 1972, a jewelry shop at Hong Hum was robbed by five criminals armed with one pistol and four knives. The shop was full of customers. Two plain-clothes detectives were patrolling nearby. They entered the shop and at once fired three shots towards the criminals. The shots fell two robbers and frightened two others to the floor. One got away. No officers were hurt. (Wah Kiu Yat Pao November 24, 1972)

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(012) At about 2:30 p.m. on February 12, 1973, four robbers barged into Lucky Restaurant on Robinson Road. The tenant’s wife slipped out and called the police. Two policemen came. One of the robbers injured a policeman with a knife. He then stole the officer’s gun and six bullets, and fled. (Wah Kiu Yat Pao February 13, 1973) (013) At about 3:30 a.m. on February 19, 1973, an adolescent was being sniped at and was injured on Nathan Road in Tsim Sha Tsui. He called out for help. Two patrol policemen answered the call. A man assailed one of the policemen with a knife. The policeman shot once in self-defense, accidentally shot and killed (Wah Kiu Yat Pao February 20, 1973) (014) At 6:00 a.m. on March 26, 1973, a patrol policeman accosted four suspicious youths at Castle Peak Road close to Camp Site Street. Two of them suddenly took out sharp tools and attacked him. The policeman pulled out his service revolver and fired one shot. Although the shot hit one of the youth’s in the thigh, but he ran away with the others. The policeman was hit by the spent cartridge-case. (Wah Kiu Yat Pao April 4, 1973) (015) At noon on March 27, 1973 four armed robbers robbed the Kowloon City branch of Ka Wah Bank at 142 Nga Tsin Wai Road. They obtained $8,500. A team of Emergency Unit police sped to the scene. The robbers fired a shot and wounded a police officer arriving at the scene. The four robbers then took two students hostage and fled the scen in the direction of Kowloon Walled City. (Wah Kiu Yat Pao March 28, 1973) (016) At 4:45 p.m. on April 17, 1973, a police service revolver robbery took place at Kwai Lam Street, Sham Shui Po, and Kowloon. Two gangsters robbed a passerby, a detective, for his watch. The victim pulled out his service revolver to resist. In desperation, the robbers punched the detective. The detective fainted. The robbers fled with his service revolver, with five rounds of ammunition. (Wah Kiu Yat Pao April 18, 1973) (017) At 12:30 a.m. on April 21, 1973, six robbers, disguised as customers robbed a restaurant at Observatory Road, Tsim Sha Tsui, Kowloon. Searching the customers they discovered one of them was a police sergeant. They pointed a sharp knife at the officer’s neck and snatched his service revolver. (Wah Kiu Yat Pao April 21, 1973) (018) At 1:30 a.m. on April 30, 1973, while a plain-clothes police sergeant and a detective were patrolling along Boundary Street close to Ho Tung Road in Kowloon, they were assaulted by two men with an iron hammer, threatening to kill them. At that instant, the detective pulled out his revolver and shot the robbers.

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One of them collapsed. The sergeant also took out his revolver as a defense. The other robber fled the scene. (Wah Kiu Yat Pao April 30, 1973) (019) At 5:20 p.m. on May 8, 1973, two robbers robbed a man at Kwong Li Road in Li Cheng Uk New District. The victim shouted for help. A detective attached to Sham Shui Po Police Station, who was patrolling nearby, came to the rescue. The robbers fled. The detective gave chase. The detective slipped. The robbers attacked him with a stick and a knife. The detective fired two rounds with his service revolver at the robbers. One shot hit a robber on the hand, the other round missed. The other robber fled. The wounded robber was arrested. (Wah Kiu Yat Pao May 9, 1973) (020) On May 22, 1973, policeman Tseng Hon Wah, 40 years old, was on patrol with two other policemen. As they passed Camp Site Street, they accosted four suspicious youths. When they questioned the youths, one of them suddenly punched one of the officers in the face and attempted to snatch his service revolver. In the ensuing struggle two shots were fired. (Wah Kiu Yat Pao May 22, 1973) (021) At 1:00 a.m. on July 10, 1973, a uniformed policeman on patrol at Man Ming Road in Yau Ma Tai came across a suspicious youth near a public toilet on Shanghai Street. The officer discovered a sharp knife in his chest pocket while accosting the youth. When he attempted to examine the youth further, the youth escaped toward Porkland Street. The policeman gave chase. He caught up with the youth. When he tried to handcuff the youth, he was assaulted. He pulled out his service revolver. He fired one shot and hit the youth in the chest. The youth was injured and collapsed. (Wah Kiu Yat Pao July 10, 1973) (022) At 9:00 a.m. to 10:00 a.m. on August 14, 1973, eight to ten robbers, armed with guns, intercepted and robbed a new, red car, number AV92X6, in Sai Kung. After the robbery, they pushed the driver out of his car. The driver reported the incident at Sai Kung Police Station at 11:45 a.m. At about 11:00 a.m., eight to ten robbers, mostly masked and armed with guns and sharp tools, rushed into the Cheung Sha Wan branch of Standard Chartered Bank at the intersection of Cheong Wah Street and Yuen Chau Street. The robbers split into two teams. One team disarmed and subdued the security guard. The other team robbed the bank. A security guard tangled with the robbers and was butted with a gun. The robbers stole $462,350. They took a female staff member hostage and fled in two separate cars. (Wah Kiu Yat Pao August 16, 1973) (023) At around 12:00 p.m. on August 15, 1973, several robbers were conducting a robbery. They attacked the police and resisted arrest. They were finally and faced charges. The defendants admitted the offenses and were sentenced to one year’s imprisonment. (Wah Kiu Yat Pao August 17, 1973)

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(024) On the afternoon of December 17, 1975, a police officer’s pistol was snatched by a robber near Shanghai Street. (Wah Kiu Yat Pao January 1, 1977) (025) At 5:00 a.m. on September 25, 1976, a villager and his sister were robbed by three bandits in Yuen Long. A necklace was stolen. The robbers fled. The victims called the police. A raid was launched at the scene. Three suspects were noticed in the proximity of a petrol station. Policeman number 17X00 hurried off in his car to intercept them. The three bandits resisted arrest. In the entanglement, the policeman was injured and the three bandits fled. The policeman immediately pulled out his service revolver and fired one shot. It did not hit anyone. Policemen in a nearby patrolling vehicle joined the chase but was in vain. (Wah Kiu Yat Pao September 26, 1976) (026) On the afternoon of November 8, 1976, three robbers armed with knives intercepted and robbed $109,000 in cash from four security guards of the Hong Kong Private Safety Corporation, at Lai Chi Kwok Park in Kowloon. The robbers encountered three detectives at the main entrance and a gun battle ensued. The three fired 11 shots in total. Two security guards were hit in the gun battle. In the end the three robbers fled. (Wah Kiu Yat Pao November 9, 1976) (027) At about 00:40 a.m. on November 30, 1976, two men armed with knives attacked a police constable on patrol and robbed him of his service revolver. The policeman’s left hand was injured. (Wah Kiu Yat Pao December 7, 1976) (028) At about 00:10 a.m. on December 7, 1976, three men armed with a pistol and knives crashed into a reporting center located in Kwun Tong where one policeman and a policewoman were on duty. The robbers threatened the officers with a knife before snatching the revolver of the male officer. Meanwhile, one of them struck the same officer on the head with the pistol. The robbers also cut the telephone line. They then got away in a car that had been waiting for them outside the reporting center. (Wah Kiu Yat Pao December 7, 1977) (029) At 10:30 a.m. on January 4, 1977 Chan Kwok Chuen of Hung Hom Police Station was on patrol in the proximity of a wood shop at 2207 Chatham Road when he was attacked by four male juveniles, . One held his neck from behind while two threatened him with knives from in front. Chuen resisted. He was forcefully hit on the head with the handle of the knife by one of the four. While Chuen’s head was bleeding, the gang cut the string attached to his service revolver and stole it. Chuen, gave chase notwithstanding, but they made good their escape. (Wah Kiu Yat Pao January 4, 1977) (030) On May 15, 1977, three armed robbers with guns and knives robbed a jewelry shop in Hong Kong West. They escaped in a taxi in the direction of Aberdeen. The taxi was stopped by police in Wah Fu Estate. A furious and fierce

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gun battle followed. Two of the three robbers were caught. The remaining one hijacked a car with two hostages sped away. The fleeing robber was described as a armed and dangerous. The robber switched to another car and continued after the cross-harbour tunnel. A reliable police report suggests that the escaped robber was shot, with good chance for his capture. (Wah Kiu Yat Pao May 15, 1976) (031) Leung Chu Sing, 30 years old, ate his meal at Nathan Road’s James Bond Restaurant at 8:00 p.m. on June 10, 1977. He stayed for three hours. The meal costed $24. After 12:00 a.m., Leung picked up a knife from the table and left the restaurant without paying. A staff member yelled at him for not paying the bill. At the same time, a policeman was returning home to the restaurant building. Hearing the screaming of the restaurant staff, he accosted Leung. Leung wounded the policeman’s right arm. Ignoring his wound, the policeman continued chasing the Leung with three colleagues. The customer ran past the border between Mong Kok Road and Sai Yeung Choi Street, but was then seen by the driver (an expoliceman) of a passing taxi who joined the chase. When the policemen caught up with and were about to catch the customer, he swung his knife again. Finally one of the policemen shot him twice in self-defense. (Wah Kiu Yat Pao June 10, 1977) (032) On the afternoon of July 7, 1977 a youngster on a motorcycle with a sharp knife created a disturbance at Peak and Central. He refused to be checked by a policeman. He attacked the officer and his service revolver, before taking two cars’ hostage to make good his escape. On passing Bailey Street he fired at a policeman. Luckily nobody nearby was injured. Although the police followed every possible avenue to catch the youngster, he still managed to escape. (Wah Kiu Yat Pao July 8, 1977) (033) At around 6:30 p.m. on August 2, 1977, two off-duty police officers, a male and female, were playing mah-jong at a mahjong entertainment center. A brutal man suddenly rushed in and, without saying a single word, grabbed the policeman by the neck and stabbed his right chest. The policeman took out his revolver and striked back. However, the man immediately took a member of staff hostage, and ran away. A large team of police launched a serious investigation at the scene, hoping to find clues, but proved to be in vain. (Wah Kiu Yat Pao August 3, 1977) (034) On August 18, 1977 a policeman’s service revolver was robbed. At about 5:05 p.m., 25-year-old policeman Tang Tsim Pun from the Sham Shui Po Police Station, was patrolling the border between Yuen Chau Street and Kwai Lam Street and discovered a suspicious-looking lorry parked illegally in front of a store. As he approached, intending to summon the lorry for traffic violation, two youths aged about 25 hit him on the back of his head with a bottle, unconscious. The two youths quickly robbed him of his service revolver and fled the scene toward the seaside. The police launched a search to intercept the two youths, but the search was searched in vain. (Wah Kiu Yat Pao August 19, 1977)

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(035) On September 24, 1977 a 34-year-old auxiliary police sergeant from Hung Hom Police Station was suddenly attacked and inured in the head by two men aged around 23 with a glass bottle. One of the men held his neck while the other tried to steal his service revolver. During the attack, the policeman activated the wireless emergency button on his communicator, and pressed against the revolver holster to prevent it from being taken away. The two parties tangled with each other. Numerous passers-by shouted at the men and some called the police. Afraid of the crowd, the robbers eluded in the direction of Chung Kit Street. A large team of police arrived at the scene and launched an investigation. They searched through Chung Kit Street’s Chung Chi Building, but could not find either of the suspects. (Wah Kiu Yat Pao September 25, 1977) (036) At 4:00 p.m. on October 5, 1977, Leung Fu, a 19-year-old policeman, was assigned to a temporary reporting center in Wo Lok Estate. The temporary reporting center was actually a police car, numbered AM8163. Three other policemen were with him. When the three patrolled the vicinity, Leung remained in the car. At that moment, a man approached the “reporting center,” pretending to ask for directions. Not realizing it was a trick Leung got out of the car. As soon as he did, he was hit hard with an iron hammer to his head. He was severely injured and fell to the road. Another man, wielding a steak knife, then cut the revolver rope attached to Leung’s body and took away his service revolver and ran off toward Ap Liu Street. A large number of policemen launched an investigation at the scene and rummaged through nearby buildings. A steak knife was found beside the water pipe near the road. It is believed to be the sharp tool that was used for robbing the service revolver. After a large-scale search, no sign of the robbers was discovered. (Wah Kiu Yat Pao October 6, 1977) (036) On October 9, 1977, sometime between 10:00 a.m. and 11:00 a.m., a police car was shot at by an air gun when it passed Woo Sung Street in Yau Ma Tei, close to Jordon Road. The shot scared the policemen inside as the rear window to the patrol car was shattered. A large group of policemen came to the scene and launched an investigation. A bullet of an air gun was found, but the source of the bullet remained unknown, as did the motive of the shooter. At about the same time, Chan Yat Ping, a 35-year-old man who lives in a house in New Territories, was suddenly shot by a bullet. His right shoulder started bleeding. The police caught five men with hunting guns. (Tai Kung Po October 10, 1977) (037) On October 24, 1977, 26-year-old policeman Fok Siu Wing from Sham Shui Po Police Station was on patrol at Ap Liu Street. Suddenly, two persons attacked him from the back; one held Fok by the neck, the other tried to take his revolver. Fok wanted to pull out the gun to fight back. At that moment, three other robbers rushed him from the front. One of them knifed Fok in his right arm and right chest. Another robber with an iron hammer joined the attack. Overpowered and defenceless, Fok fell unconscious by the roadside, With Fok unconscious, the

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robbers used a sharp knife to cut the revolver rope attached to his body and took away his revolver, and escaped by way of Shek Kip Mei Street toward Shek Kip Mei Estate. (Tai Kung Po October 25, 1977) (038) At about 8:45 p.m. on October 28, 1977, two men holding beer bottles entered the reporting center at Choi Hong Estate. Without a word, one of the culprits took out a pistol and pointed it at the police inside. There was only one policeman and one policewoman at the scene and the men attacked them with the beer bottles. The attackers snatched the service revolver from the policeman, and eluded them. (Wah Kiu Yat Pao October 29, 1977) (039) On November 5, 1977, five robbers, with two guns and a knife, robbed the Kowloon Waterloo Road branch of the Hong Kong and Shanghai Bank Corporation. Wielding their guns they threatened over 20 staff and 40 customers, and make away with HK$312,000, US$2,200 and £385. The police arrived just in time to encounter the three robbers. The robbers fired several times, and the police shot back three times. Amid the chaos, police Wong Lung Chuen was hit by a bullet and fell. A bag of money was dropped by one of the robbers and bank notes were scattered about the road. After a series of large-scale chases, the police finally arrested the five robbers. Most of the stolen money was retrieved. In addition, police found two lost revolvers in a wooden house. After examination, one of them proved to be the revolver lost on October 28, 1977. (Wah Kiu Yat Pao November 6, 1977) (040) At 10:00 p.m. on November 21, 1977, an undercover policeman was patrolling Mong Kok when he discovered a man in untidy clothing with a suspicious look loitering. Suspecting that the man may be carrying drugs, he accosted him. However, the man resisted and ran away. The policeman gave chase. The policeman was about to catch him when the man picked up an iron window bar and beat the policeman’s left arm. Enduring the pain, the policeman took out his service revolver and fired twice at the man. However, both shots missed. The man was able to run into the crowds. (Wah Kiu Yat Pao November 22, 1977) (041) On December 2, 1977, a criminal failed to climb out of a window near the Tai Yuen Department store in Causeway Bay. The store manager caught him and turned him over to the police. The man escaped. The policeman gave chased. Finally, the suspect was caught in a warehouse with two pieces of ceramic tile. He rushed the policeman who shot him dead in self-defense. (Wah Kiu Yat Pao March 21, 1978) (042) On December 13, 1977, policeman Leung Foon Shing was on motorcycle patrol when he saw two young motorcyclist whiz past on Waterloo Road toward Boundary Street. Suspecting something, Leung followed them. At Tat Chi Road, Leung told them to get off their bikes to be checked. At this juncture, one of

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them took out a sharp knife cut Leung’s revolver string, and snatched his service revolver before pushing Leung to the floor. Leung wanted to get up but was shot at. The shot missed. At the same time another policeman heard the shot and hurried to the scene. He was also shot at by the escaping robbers. A police patrol car came to the rescue and in pursuit of the motocyclists. The two robbers disappeared. The police were able to capture the gun robbers by the documents they left behind. (Wah Kiu Yat Pao June 15, 1978) (043) On March 3, 1978, a sergeant was shot dead by four masked robbers at a big gambling stall in Wong Chuk Street. According to the police analysis, Lau’s service revolver was placed on the right side of his leg. Yet because Lau bent down to reach for his gun, the bullet hit his head. (Wah Kiu Yat Pao March 20, 1978) (044) At 8:50 a.m. on May 4, 1978, a sergeant with six policemen launched a raid at 7 Pak Shu Street. One of the policemen discovered four suspicious men and shouted at them to stop. The four men fled separately. Three of them rushed to the top floor while the remaining man escaped through a side door into the street. The policemen chased them separately. When one of the policemen chased the man who fled toward the street, the man turned back suddenly and attacked him. In the end the policeman shot him dead and the other criminals were arrested. (Wah Kiu Yat Pao May 5, 1978) (045) At 6:40 p.m. on August 16, 1978, a detective attached to Hong Kong Police Headquarters entered a public toilet at Sai Yi Street, for convenience. No sooner has he entered, a drug addict jumped on him over the toilet wall. The detective took out his revolver and shot the man who was stabbing him. They struggled fought for some time, before the detective shot the man twice and killed him. (Wah Kiu Yat Pao August 17, 1978) (046) On October 23, 1978, a police constable told a fish-ball hawker in Wellington Street to pack up and leave, or faced arrest for obstruction. Lee Hoi Kung, 21 was eating at the hall and allegedly made several remarks to the constable. He kept on until the policeman. A chase and struggle followed. The policeman warned him to stop. Lee ignored him. The officer opened fire and wounded Lee, who collapsed later. (SCMP October 24, 1978) (047) At 5:00 p.m. on December 1, 1978, in Lower Wong Tai Sin Estate, a triad gang member attempted to extort money from a vegetable stall. Faileding that he made trouble for the stall. A police patrolman walked past and gave chase. The triad gang member took out a weapon and attacked him. Fortunately, another policeman walked by and opened fire twice, wounding the triad gang member once in the left leg. The gangster collapsed and was arrested. (SCMP December 1, 1978)

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(048) On May 1, 1979, three men armed with guns entered the Shek Kip Mei Lai Chung Jewelry Shop in Kamberley Road, Tsimshatsui. They began the robbery by threatening the staff with their guns and fired one bullet at a wall. Then they took the cash and the taels of gold, putting them in a bag and fled. On June 21, the three men were driving a van in Kimberley Road when they were intercepted by police roadblock. When they were asked to get out of the van they fired at the police. They then escaped by taxi, followed by the police. Eventually the taxi carrying the suspected robbers eluded the police. One of them was later arrested in a flat in Middle Road. At 7:45 p.m. on June 21, 1979, a police officer, Chan, with four other police constables, staged a roadblock to check vehicles at the intersection of Observatory Road and Kimberley Road in Tsim Sha Tsui. The roadblock stopped with three people inside. A policeman was about to check the driver’s driving license when suddenly one of the passengers shot at the other policeman t the block. The bullet hit his belt. The policeman was injured. The three men got out. A gun battle ensued. They threatened a taxi driver but he drove away. No passersby were injured and the three men escaped. (June 22, 1979) (049) On June 25, 1979, a police constable attached to Tsuen Wan Police Station was attacked and his service revolver almost snatched when he tried to search two men who were acting suspiciously inside an empty building, which used to be the Hong Kong Telephone Company Staff Quarters. In a struggle, a constable drew his gun and fired one shot, hitting one of the men in the buttocks. The injured man, 39, was then arrested, while the other suspect fled. (SCMP June 25, 1979) (050) A man, Choi Bing Keung, 23, was shot dead by a police constable, shortly after 9:30 p.m. on June 26, 1979 when he allegedly tried to resist arrest in the Jordan Valley Estate in Ngau Tau Kok. Two men were injecting themselves with dangerous drugs on the sixth-floor staircase landing of the estate. One of them was arrested after a short chase, while the other put up a struggle and attacked the policeman. Finally he was shot dead. (SCMP June 27, 1979) (051) On November 27, 1979 two armed robbers with guns robbed the Hong Kong Bank in Tai Kok Tsui. A plain-clothes policeman stationed there drew his gun to stop the robbers, a gun battle ensued. The two parties fired a total of 15 shots. Four people were injured, including one of the robbers, a vice-manager of the bank, the policeman and a passer-by. The bank had lost nothing. The injured robbers was admitted to hospital while the other escaped. On November 27, 1979, at about 1:20 p.m., two armed men tried to rob the Hong Kong and Shanghai Bank branch in Larch Street, Tai Kok Tsui. Chan held a 0.45 automatic pistol while Chu was armed with a 0.32 revolver. A policeman, Yeung Chin-hing, who was on special duty in plain clothes, was at the scene. He soon found himself in a gun battle with the robbers. Chan was injured and collapsed while trying to escape. Chu ran off but was arrested on May 15. (SCMP November 28, 1979)

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(052) On the night of December 2, 1979, policeman Chan (24) suffered deep cut wounds to both hands during a struggle with thugs in San Po Kong. The knife-wielding thugs attacked him and stole his service revolver and six rounds of ammunition. Chan was then admitted to Queen Elizabeth Hospital. (SCMP December 4, 1979) (053) In the early hours of January 1, 1980 while on duty in the Wan Chai area, a detective sergeant went to a restaurant to meet an informer. About 3 a.m. he went to the Shanghai Restaurant with two detective constables. A man he knew told him that a former policeman Chai wanted to speak to him. He went over to the former policeman’s table and saw the three defendants. Chai told the sergeant he must stop arresting his “brothers” or he would be hurt. The former policemen then slapped him onto the floor and the others began hitting him. They grabbled chairs and moved in on him. The sergeant warned them several times to stop, or he would shoot. They ignored his warning. The sergeant therefore fired several shots. Chai was shot dead and the two other Chai’s men were hit. The sergeant was injured and was also taken to hospital. (SCMP June 11, 1980) (054) At 4:00 p.m. on April 3, 1980, a team of plain clothes policemen were patrolling along the Tai Nam Street in Sham Shui Po when they saw a suspiciouslooking man. The police stopped him and asked to check his identity. The suspect suddenly drew a pork-knife from his waist and attacked the police. A policeman’s left arm was wounded and the suspect ran away. The policeman drew his service revolver and fired a shot at the suspect’s waist. The suspect was hit and collapsed. As a result, he was arrested. (Tai Kung Po April 4, 1980) (055) Two police officers were attacked on April 13, 1980 and their service revolvers stolen by a group of thugs. The two officers, 23-year-old Yip Hon Ming and 26-year-old Cheung Ping On, were patrolling outside a garage at 34 Bailey Street when their necks were suddenly grabbed from behind by the gangs. The police officers tried to strike back but failed. The struggle finally came to an end when a garage worker came in, though he was kept at bay by one of the thugs. As a consequence, the thugs ran away and the two policemen who suffered neck and hand injuries were sent to Queen Elizabeth Hospital. (Tai Kung Po April 15, 1980) (056) At 11:00 a.m. on April 27, 1980, a police patrol car passed Sham Shui Po, close to Castle Peak Road and discovered a taxi serving passengers in a prohibited area. The police tried stopping the taxi but the taxi ignored the order and drove away toward Kowloon City. The police gave chase and stopped the taxi in Wong Tai Sin. The two policemen intended to arrest the driver but the driver suddenly drove the taxi backwards. A chase ensued. Eventually the police fired three shots and one bullet hit the driver in his right arm. The driver was finally arrested and admitted to hospital. (Tai Kung Po April 28, 1980)

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(057) On April 27, 1980, a group of detectives arrested two suspects in a restaurant in Mong Kok. Afterward, about three to seven men arm suddenly attacked the detectives outside the restaurant with chains. The police reported that the thugs were in a settlement talk over a dance hostess. The hostess wanted to go out with her new boyfriend. Yet her ex-boyfriend wanted her give him $2,300 dollars splitting money. The two go to the restaurant for the talks. While the ex-boyfriend was on his way to the restaurant with friends, they met the detectives and started fighting them. Six men were injured and one was shot dead by a detective policeman. (Tai Kung Po April 28, 1980) (058) At about 2:30 a.m. on June 27, 1980, a detective sergeant and officers from the Criminal Investigation Department of the Yau Ma Tei Police Station followed a man. The man and the police entered a deserted back alley. Two other men jumped the police. They shut an iron grille to the alley before attacking the sergeant with wooden poles. A detective constable ordered the two men to put down their poles. His order was ignored. The constable fired one shot and hit one of the assailants in the chest. The men was arrested and detained in Yau Ma Tei Police Station. (SCMP June 28, 1980) (059) In August 14, 1980, at about 2 p.m., a 24-year-old plain-clothes policeman stopped two men who were acting suspiciously outside the Wah Shing Gold shop at 96C Pei Ho Street. The Police Constable noticed a bulge under the shirt of one of the men and asked to search him. But one of the suspects, aged about 24, suddenly drew a pistol and fired at the constable. The two men then fled on foot toward Shek Kip Mei Street. The constable drew his revolver and gave chase along the crowded street. No other shots were fired. The two men disappeared among the crowd. A bullet shell was later found at the scene. (SCMP August 15, 1980) (060) At 12:00 noon on October 29, 1980, three robbers with a pistol and two axes rushed into a jewelry shop in the Oi Man Shopping Mall in Oi Man Estate. The robbers with axes intended to break the window glass, but was not able to be do since it was security glass. One of the staff members pressed the alarm button. A policeman in plain clothes on patrol rushed to suppress the robbers. The robbers shot at the officer thrice and one bullet hit his stomach. The three robbers made good their escape in a private car. Sometime later the police found the car in Hung Hom, but the robbers had gone. (Tai Kung Po October 30, 1980) (061) At about 11:15 p.m. on November 8, 1980, three robbers armed with a pistol entered a jewelry shop in Kowloon City. One of the robbers fired a shot with his pistol to scare the people inside. Then a fourth robber rushed in and snatched a quantity of jewelry. At the same time, an employee pressed the alarm. Two policemen on patrol were alerted. They spotted a man acting suspiciously in the entrance of the jewelry shop. A robber fired a shot at the policemen. Soon afterwards two more policemen arrived. An exchange of fire took place. In the

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exchange the policemen and the robbers fired 11 and nine shots respectively. The robbers fled by car. Later, the police found the car stained with blood in Ping Shek Estate. A big paper box, a wooden bar and a canvas bag were in the car. It was believed that one robber was shot in his leg and another in his chest. No arrests were made. (Tai Kung Po November 9, 1980) (062) At about 2 a.m. on January 3, 1981, two police officers were dining in a noodle restaurant when three men with pistols rushed in and snatched their service revolvers and wallets. They also robbed the restaurant and then fled in a sevenseat van. Seven hours later the police received an alert from an unknown man saying he had hidden the pistols in a restaurant in Mong Kok. The police went and searched the place but nothing was found. At about 4 p.m. on the same day four robbers with two pistols and an axe entered a jewelry shop in Lai Chi Kok. One of the robbers tried to break the glass of a showcase, but was unsuccessful and the alarm was rung. The robbers fled immediately. Another case of robbery occurred at 43 Nathan Road, Yau Ma Tei. At about 5:30 p.m., three robbers, each armed with a pistol, entered a jewelry shop. One of the robbers opened the showcase and took three trays of jewelry. Both robberies happened in Kowloon on the same afternoon. The police suspect they are related to the case of the stolen service revolvers. (Tai Kung Po January 4, 1981) (063) At about 8:15 p.m. on January 8, 1981, four robbers with two axes and a pistol entered a watch shop in Kowloon City. One of the robbers fired a shot and two hit the glass showcase with axes. As the glass was theft proof, the robber was unsuccessful. A police sergeant and a police constable attached to the patrol sub unit, Kowloon City were patrolling nearby. They heard the sound of hard objects being hit and went to investigate. On approaching the watch shop, they saw the robbers still hitting the showcase. The sergeant shouted to them. The robber opened fire with the pistol while the police constable and sergeant returned fire. The robbers then fled. When they reached the junction of Fuk Lo Tsun Road and Prince Edward Road, the four divided into two groups and fled in different directions. Two robbers were finally arrested. One of them was shot dead and one was injured. (SCMP January 8, 1981) (064) At about 10:30 a.m. on March 21, 1981, a police sergeant was having a midnight snack with his friend in a restaurant in Tsim Sha Tsui when two men in their 30s or 40s walked up to the sergeant and fired four or five shots at him. The sergeant and his friend were both killed. The murder was believed to be a case of revenge and may have been arranged by a drug smuggling organization. No arrests were made. The police offered a 50 thousand reward for the murderers. (Wah Kiu Yat Pao March 22, 1981) (065) On the afternoon on September 7, 1981, six robbers holding pistols and knives entered a jewelry shop at Oi Man Estate. They were ambushed in the shop

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by detectives and a gun battle broke out. Two of the culprits were shot and five police officers as well as some passersby were injured by glass fragments and strayed bullets. Finally, all the culprits were arrested. (Tai Kung Po September 8, 1981) (066) In the early hours of October 25, 1981, a male plain-clothes police officer was escorting a woman back to Shun Hing Building when he was attacked by four people.. The thugs took his jewelry, cash and service revolver loaded with six rounds.. The robber fled and no one was arrested. In the early hours of November 3, 1981, the police received a tip-off that the service revolver was hidden in a residential unit in Huang Dong Street. The police went to investigate and found the service revolver in the bottom of the sink in the kitchen. Later, the police received another tip-off and proceeded to a residential unit in Ping Shek Estate. They found some lost jewelry in the unit and arrested four men aged between 28 and 31. (Wah Kiu Yat Pao November 4, 1981) (067) On November 12, 1981, four culprits decided to steal some policemen’s service revolvers to rob a jewelry shop. However no opportunities presented themselves. One of the culprits told the other three that he knew a police constable (PC) and could ask him to borrow his service revolver. The culprit met the PC at 11 p.m. in a nightclub in Mong Kok. After that, they drove to a stone house in Sai Kung. Two culprits talked with the PC. One culprit stayed outside to smoke cannabis brought by the PC. Later, the culprit outside heard the sound of breaking glass and rushed in. He saw one culprit laying on the floor and another culprit fighting with the PC. He snatched the PC’s service revolver and pointed it at the PC’s head. A culprit cuffed the PC with his own handcuffs. They then strangled the PC with a rope and hit the back of his neck ten times. The PC died. The police arrested the culprits by investigating the PC’s pager. (Wah Kiu Yat Pao November 16, 1982) (068) On November 16, 1981, a man robbed a watch shop at 94 Prince Edward Road, Mong Kok. He netted $6,400 of cash and watches. A policeman was alerted to investigate. The robber snatched the officer’s service revolver loaded with six rounds of ammunition. In August 1987, the police arrested a 34-year-old merchant who was suspected to be linked with the case. He was charged with robbery and snatching police service revolver. (Oriental Press August 4, 1987) (069) On December 20, 1981, three robbers with pistols robbed a jewelry shop located in Ho Man Tin. When they fled, they used a car to hit a policeman and stole his service revolver loaded with six rounds of ammunition. On January 18, 1982, when the police tried to arrest one of the robbers in North Point, he opened fire with the stolen police pistol. The policeman returned fire and the robber was shot. In April the same year the robber hit an instructor of the Correctional Service Department and fled. But a policeman on beat duty finally arrested him. (Ming Pao November 5, 1982)

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(070) On March 12, 1982, shortly after 9 p.m., two sergeants attached to the coroner’s department were quarrelling on the third floor of the Kowloon Police Head Office. They did not communicate well because of language problems. On that night, each blamed the other for being unfairly. One of the sergeants fired a shot and hit the other sergeant in his right shoulder. The policemen nearby sent the injured sergeant to the hospital. Hong Kong Island set up a team to investigate the issue. (Wah Kiu Yat Pao March 13, 1982) (071) At about 10:25 a.m. on March 13, 1982, a uniformed policeman on patrol was attacked by a 34-year-old man outside the entrance to Nathan Restaurant in Pak Hoi Street. The attacker tried to take his service revolver, a struggle ensued. An employee of the fast-food shop on the ground floor rushed out to help the policeman. Later on, three more uniformed policemen arrived and arrested the culprit. (Wah Kiu Yat Pao March 14, 1982) (072) On April 10, 1982, shortly after 8 p.m., Sergeant Lui dined with three colleagues and three friends at a seafood restaurant in Kowloon City. After settling down, they saw two men sitting next to them. One of the men was wearing a cap. Fifteen minutes later, another three men walked up to the two men and asked the man with the cap to go out. The man refused. One of the three men then hit him with his fist. At the same time, three to four men with iron water pipes and iron bars walked towards them. Sergeant Lui stood up and warned them to stop. Sergeant Lui was pushed under the tables and his hand hit with a hard object. He then drew out his service revolver and pointed it at the attackers. Seeing this the attackers fled. (Ming Pao April 11, 1982) (073) At about 0:15 a.m. on May 13, 1982, while walking along Mong Kok Shanghai Street, a detective heard someone yelling “robbery” from upstairs. The detective immediately ran up. On the third floor, he came face to face with three robbers, aged about 25 to 27. Once the robbers saw the sergeant, they gripped the sergeant’s neck. A struggle ensued during which the robbers discovered that the sergeant had a service revolver and they stole it. The detective tried to fight them but without success. The robbers fled. The detective was stabbed in the right hand and the people being robbed sustained slight injuries. (Tai Kung Po May 3, 1982) (074) At about 5 p.m. on July 31, 1982, a man complained to a police officer on patrol in Kau Yuk Road, Yuen Long that he had been assaulted. He led the police officer to Ho Fat Building. Meanwhile, another man was waiting outside the building’s lift. They entered the lift together. As the lift travelled to the fourth floor, the two men suddenly stabbed the police officer. They then used a sharp knife pointed at the officer’s neck and abducted him to the terrace. There the attackers cut the rope attaching the officer’s service revolver and took it loaded with six rounds of ammunition. They stripped the police officer of his upper clothing and handcuffed him to the iron bar of a water tank. The police officer tried to fight

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them but was stabbed him in the neck. The attackers then fled. The police officer shouted, alerting a 19-year-old girl living in the building opposite. The girl called the police and the police officer was saved. The suspects were not arrested. (Tai Kung Po August 1, 1982) (075) In the early hours of August 24, 1982, the police received a tip-off that two groups of people were causing trouble in a disco in Central. While a police constable investigated inside the disco, two people fought outside. One of them was stabbed in the back. The police constable rushed out to stop the fight but was attacked. The police constable then fired one shot to the ceiling. The attackers ignored this warning and continued to attack him. The police constable fired again and a young man with a red T-shirt was injured. The young man fled in the chaos. (Ming Pao August 24, 1980) (076) At about 5:30 p.m. on September 6, 1982, a 24-year-old auxiliary police constable was on beat duty in Ma Tau Kok Road when he was approached by a young man who told him there were “suspicious characters” in a nearby building. At the building he was met by two men who said they were involved in a dispute over wages in an office on the tenth floor. He went with them to the tenth floor but was attacked by the trio with a knife and two iron bars as they tried to steal his gun. He used his handcuffs to fight off the trio who fled empty-handed. The constable later received treatment at Queen Elizabeth Hospital for neck and arm injuries. (SCMP September 7, 1982) (077) At about 10 p.m. on December 22, 1982, three robbers armed with knives and pistols robbed a jewelry shop in Kwun Chung. They ordered the employee to put the jewelry in a nylon bag. They then fled toward Nathan Road by car. A police cruiser on patrol was alerted to the robbery and started chasing them. When they drove to Ho Man Tin, the robbers and police fired at each other once, but no one was hit. The robbers got out of the car and fled. One culprit was scared by the shot and fell to the ground. In the end he was arrested. (Oriental Daily December 23, 1982) (078) On the night of March 4, 1983 a shooting took place in Mong Kok. When two policemen on patrol checked the identity of a suspicious-looking man at Cheung Mong Road in Mong Kok, the man resisted and fled. He then drew his gun and shot at the officers. When the detectives sought help, the suspect shot again. The policemen fired twice during the chase but no one was hurt in the incident. More than one hundred policemen then rushed to the scene to launch a full-scale search, and four streets near the scene—Fife Street, Reclamation Street, Argyle Street, Canton Road—were blocked for three hours. Neighboring shops were also searched. However, the man was not caught and is now wanted. (Oriental Daily News March 5, 1983)

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(079) At 5:10 p.m. on March 6, 1983, Tang Man-to was asked to investigate a suspected burglary case at 44–48 Kwun Chung Street. When he arrived between the fifth and sixth floors, he saw a man, Chung Kamtong, 38, struggling with PC Sit with a pair of scissors and a knife.. The suspect also threw bricks at Tang’s colleagues. PC Tang then fired one shot, but it missed. A second shot was fired without warning, and hit the suspect in the head, killing him. (HK Standard July 5, 1983) (080) At midnight on March 23, 1983, on Tai Po highway, four detectives attached to Tin Shui Wai Police Station fired eight bullets while chasing a fleeing gang of speeding drivers. One of the cars was later found in Wong Tai Sin, burnt to eliminate. any evidence. The gang was also believed to be connected to a case of parts stolen from cars. During the chase, three policemen were knocked down by cars. They were later sent to hospital for treatment. One of the gang was found unconscious inside a car and was hospitalized in fair condition. (Oriental Daily News March 24, 1983) (081) Receiving a report, PC Lai King-Keung was instructed to investigate a fire at Room 516, Clock 10, Ko Chiu Road Estate at about 7 p.m. on April 3, 1983. While firemen were putting out the fire, someone complained that upstairs there was a man in shorts with a weapon. Going floor by floor, with PC Hui and PC Fung, he found the 59-year-old man named Pun Wai-man. The man stabbed PC Lai in the chest. While struggling with the man, PC Lai heard one of his colleagues shout loudly to the man to stop or he would shoot. The first shot fired by PC Hui missed. But as Pun didn’t desist, even after the first shot, PC Fung brought Pun down with a second shot that caused a fatal wound to the lung. Although PC Fung claimed that if he hadn’t opened fire, PC Lai’s life would have been endangered, the unanimous verdict of justifiable homicide was returned on June 27, 1983 as the jury thought a lesser degree of force should have been applied in the case. (SCMP June 28, 1983) (082) At 11 a.m. on June 24, 1983, three men describing themselves as detectives broke into a jewelry shop named “Man Lee” at 180 Johnston Road in Wan Chai. They were spotted as they fled and one plain-clothes policeman was shot, and his pistol and six bullets snatched. The car driven by the robbers was then proved to be a missing car. A bullet shell was found at the scene and it was proved to be the same as the one used in the murder of a nightclub owner on March 29, 1983. Police was searching for more information from this clue. The injured detective was nicknamed “sharpshooter” and had participated in shooting competitions for several years. (Ming Pao June 25, 1983) (083) At about 1 a.m. on July 26, 1983, a sergeant came across two suspicious men in Robinson Road and conducted a stop and search. The two men identified themselves as taxi drivers. When the sergeant opened the bag of one of the men,

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he discovered a sharp weapon inside. One of the men then took the weapon and attempted to attack the officer and snatch his revolver. The sergeant then fired a shot at the culprits and one of them was killed while the other ran away. (Oriental Daily News July 26, 1983) (084) In 1984, from January to February, nine gun battles between police and robbers took place. At about 9:50 a.m. on January 7, three robbers armed with pistols robbed a jewelry shop in Aberdeen. They snatched a quantity of gold items and fired one shot. No one was hit. On January 8, shortly after 1:10 p.m., four men wearing wigs entered a watch shop and grabbed watches worth a total of $800,000. Twenty minutes later, one policeman and an auxiliary police constable spotted the robbers. When they came face to face, the gang fired three shots at the policeman and the auxiliary police constable. The auxiliary police constable returned a shot but no one was hit. On January 9, shortly after 4 a.m., an off duty detective sergeant drew his service revolver in order to stop a fight in a bar in Peninsula Centre, Tsim Sha Tsui. A man grabbed the sergeant’s service revolver and fired a shot at another man who was killed. Half an hour later, four men went to Tsim Sha Tsui police station to turn themselves in. (Wah Kiu Yat Pao February 12, 1984) (085) On January 16, 1984, shortly after 1 p.m., Sergeant Ma was carrying out an anti-crime operation in plain clothes along Robinson Road. At a flight of steps next to the Ying Wa Girls’ school, he stopped and attempted to search a man suspected in connection with recent robberies of women walking alone. But the man attacked Ma with a foot-long knife. In the struggle, the officer was stabbed in the neck and stomach and his revolver was snatched. Detective sergeant Tse, also on plain-clothes duty nearby, tried to intercept the killer at the bottom of the steps in Bonham Road close to Breezy Path. There was an exchange of fire, which sent students and other passers-by dashing for cover. Tse was hit in the head during the shooting and a passing girl student was also slightly injured. The killer, who is believed to have been shot in the stomach by the detective, managed to run off and was seen boarding a route 40 CMB bus in Caine Road. A plain-clothes policeman chased after the eastbound bus on foot. But when he was less than 10 feet from it, he was forced to halt when the man pointed the gun directly at him through the window. The police constable then commandeered a private van and continued chasing the bus. The man was seen jumping off the bus in Ladder Street. He fled toward Po Hong Fong on foot and disappeared. Three hours after the attack, a man was arrested in the public lavatory in Ladder Street but he was later released. He had no injuries. The detective and sergeant both died. The condition of a student who was hit in the left shoulder during the exchange of fire was described as satisfactory. (SCMP January 17, 1984) (086) On January 17, shortly after 3:50 p.m., three robbers armed with pistols robbed King Lai jewelry shop in Hennessy Road. They stole a quantity of jewelry,

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worth $1,000,000. Three police constables received an alert and came face to face with the three robbers in the entrance of the jewelry shop. A robber fired a shot at the constables while the three constables returned fire. The robbers finally fled. Two pedestrians were injured. (Wah Kiu Yat Pao February 12, 1984) (087) At about 11:10 a.m. on January 31, 1984, five armed men robbed a security car outside the entrance of Po Sang Bank in Central. Brandishing pistols, they robbed the car while the security guards were transporting a money case from the car to the bank. As they were fleeing to the east, a police constable reported the situation and a police car arrived at the scene. The culprits fired at the police car and passers-by. A girl was shot dead by the gang. A gun battle broke out between the criminals and the police but they finally got away. (Wah Kiu Yat Pao February 1, 1984) (088) On February 5, 1984, one of the members of the gang that robbed the bank on January 31, 1984 informed the police of the whereabouts of their hiding place. The police soon covered the area of Tai Hang and searched for the criminals. Two culprits fired at two police constables and another attempted to kill a foreign police inspector. The two policemen were seriously injured. The police finally caught all the four culprits. (Sun Pao January 15, 1985) (089) At about 6:50 p.m. on February 17, 1984, a blue private car stopped at a watch shop in Manwah Hotel Plaza. Three masked men entered the plaza and broke the glass of the watch shop with a big iron bar. They fired two shots. Ordering the six employees to lay down still, the robbers put a quantity of watches into two blue bags. After that, one robber took a female staff as hostage. A female sergeant was on patrol nearby. She was alerted to the robbery. The robbers spotted her. They pushed the female employee down and shot at the sergeant. No one was hit. But the robbers got into a car and fled toward Wan Chai. (Oriental Daily News February 18, 1984) (090) On February 22, 1984, shortly after 1:55 p.m., a policeman was sitting in San Fung Canteen in Kwai Chung. when a man tried to snatch his service revolver from behind. Two canteen staff pushed the attacker to the floor. A struggle ensued during which one of them fired a shot but no one was hit. Finally, the police arrived and the attacker was arrested but the motive was still in doubt. (Wah Kiu Yat Pao February 23, 1984) (091) At about 11:40 a.m. on February 24, 1984, two tall robbers armed with pistols entered a jewelry shop in To Kwa Wan with one robber stayed outside. One robber tried to break the glass showcase in the jewelry shop with a big iron hammer, but failed, setting off the alarm instead. A policeman on patrol heard the alarm and went to investigate. The robber outside spotted the police constable and fled. The constable and the other two robbers came face to face in the entrance

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of the jewelry shop. The robbers opened fire with their pistols while the police constable returned fire. One robber fled and got into a taxi in Ma Tau Chung Road. During the exchange of fire, two passengers in a bus were slightly injured. (Wah Kiu Yat Pao February 25, 1984) (092) At about 7:30 p.m. on April 1, 1984, three robbers armed with pistols walked toward Tung Shing Jewelry Shop in Kwun Tong. One robber pointed his pistol at the jewelry shop’s security guard and snatched his gun. The other two robbers entered the jewelry shop and used axes to break the showcase. They put a quantity of jewelry into a bag. The alarm rang and the robbers took the security guard as hostage. An auxiliary police constable heard the alarm and arrived at the scene. The robber fired two shots at the auxiliary police constable as he tried to confront the robbers. The robbers got into an escape car and fired another shot as they fled. The auxiliary police constable then commandeered a taxi and continued the chase, but they disappeared into Shun Lee Estate. (Oriental Daily News April 2, 1984) (093) On April 2, 1984, shortly after 5:45 p.m., while four police officers were on anti-crime patrol outside Block 11, Ngau Tau Kok Estate, they spotted two men acting suspiciously in a rest area. When approached, one of them produced a converted 22 pistol that was loaded with 11 rounds of ammunition. A detective constable grabbed the pistol from the man who then fled. The man was carrying a bomb. It fell to the ground as he made his gateway. The man was arrested after a short chase. His accomplice fled toward blocks 11 and 13 and threw a bomb into the path of the chasing policemen as they raced through a car park. The bomb exploded, but the fragments were contained by a wall and a van. The blast left a half-inch-deep holes in the wall. (SCMP April 3, 1984) (094) At about 5:55 p.m. on April 11, 1984, a yellow car stopped outside Wing Shing Jewelry Shop in Shanghai Street, Yau Ma Tei. Three men got out of the car. Two covered their faces with silk stockings and entered Wing Shing Jewelry Shop to rob it while the other robbed Leung Wah Shang Jewelry Shop opposite. One armed robber took jewelry out of the jewelry shop and forced the security guard to go with him. While the other robber was in the Leung Wah Shang Jewelry Shop, a female staff member pressed the alarm. The security guard confronted the robber and a struggle ensued. Two off-duty police constables heard the alarm and went to investigate. When the police constable and the robbers came face to face in the entrance of the jewelry shop, the police constables showed their identity and drew out their service revolvers. As the security guard and robbers were entangled, the police constables refrained from firing any shots. However, the robbers fired two shots at them and snatched the security guard’s gun. They got into the car and fled toward Nathan Road. The police constable fired 12 shots at the car but still could not manage to arrest the robbers. (Wah Kiu Yat Pao April 12, 1984)

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(095) At about 9:30 a.m. on June 29, 1984, So Lai Jewelry and Watch Company in Tsim Sha Tsui was about to open. Four masked robbers in black outfit entered. They broke the glass of the entrance with a large iron hammer and used a knife to frighten the staff. They put a quantity of watches into a bag. As a policeman was passing by they got into a white private car that had been parked there earlier. The policeman chased the robbers, who fired one shot and the policeman returned fire. No one was hit. In order to protect themselves, the robbers took a woman hostage. They then escaped in a white car. While fleeing, at the junction of Shanghai Street and Po Ling Street, the robbers were intercepted by three policemen. After a struggle, one robber was arrested and the others fled. (Tai Kung Pao June 30, 1984) (096) At about 12:30 p.m. on September 8, 1984, a private car parked outside a jewelry shop in San Po Kong. Two men got out of the car and entered the shop. One, masked robber used a pistol to frighten the staff and customers inside. The other snatched a quantity of jewelry. A staff member pressed the alarm and the robbers quickly fled. A policeman on patrol arrived to face the two robbers in the entrance of the shop. The robbers opened fire while the policeman returned fire. The shots startled pedestrians creating chaos. The robbers then fled toward Wong Tai Sin and no one was arrested. In the exchange of fire, a passerby was shot dead and one customer was slightly injured. (Ming Pao September 9, 1984) (097) At about 11:50 a.m. on November 11, 1984, the police spotted a 37-year-old man in a toilet located in 3/F Block 7 Lee Cheng Uk Estate, using drugs. At about 11:50 p.m., a foreign sergeant leading three policewomen took the culprit back home to 3/F, Block 7 to investigate. They found heroin at his home and decided to take the culprit’s mother and two brothers to the police station. At that moment, the culprit’s younger brother came home and put up a fight with the policemen. In the struggle, two policemen were hurt with a chair. The four brothers were also slightly injured. Finally, the policemen drew out their pistols to control the culprits. A number of neighbors converged as spectators. The policemen frightened the neighbors with their pistols. The culprit’s two sisters then came home from a dinner. They dared not enter the house and therefore dialed 999 [the emergency services number]. Some uniformed policemen came and controlled the chaos. (Oriental Daily News November 12, 1984) (098) At about 12:30 p.m. on December 28, 1984, a gang of robbers attempted to sell stolen goods to four undercover police officers. After the exchange of goods and money, the police officers tried to arrest the robbers. The culprits got into a car and attempted to escape. In the meantime, three police cars surrounded the thieves’ car. When one of the culprits pulled out his pistol, concealed police officers appeared and stopped the potential gun battle. All the culprits were successfully arrested. No police officers were injured. (Oriental Daily News December 29, 1984)

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(099) At about 10:26 a.m. on January 17, 1985, a blue private car with five men was parked at the junction of Lai Chi Kok Road and Pei Ho Road. Three men armed with a pistol and an iron bar got out with a hammer and entered Bo Huang Gold Shop. The robber with a pistol threatened the shop’s three staff, while the robber with a hammer broke the glass showcase and quickly snatched a quantity of jewelry. They then fled. In the meantime, a patrolling motorcycle police constable spotted the blue getaway car parked in a no-parking area. Intending to take down the car number, he saw the three men acting suspiciously. He started chasing them, but a robber fired one shot at the PC, who overturned his motorcycle to dodge the shot. No one was hit, but the robbers got away. (Wah Kiu Yat Pao January 18, 1985) (100) On January 22, 1985, shortly after 8:15 p.m., three men entered a residential unit in 2/F Kau Yuk Road, Yuen Long. They banished a knife to rob the resident. At the same time, a female sergeant with two policemen was patrolling in the area. As they approached the entrance of the building, they saw the three robbers running out. The armed robber was intercepted by the sergeant and a policeman. He attacked them with the knife, stabbing one of the policeman’s left hand. The policemen fired three shots and killed all the robbers. The sergeant had injured her head and waist. (Sun Pao January 23, 1985) (101) At about 5:50 a.m. on February 12, 1985, a 50-year-old cashier and two other employees were working at the Caltex gas station in Prince Edward Road. Two men tried to rob the cashier with a sharp knife and a screwdriver. One employee raised the alrm. Two policemen arrived. When the robbers decided to leave, the policemen warned them to stop. One robber ignored the warning and stabbed the policeman with a knife. The other policeman fired a shot but the robber fled. The policeman fired another shot and the robber was heard screaming, still he fled toward San Po Kong. Hearing the shot, the other robber became scared surrendered. (Sun Pao February 13, 1985) (102) On March 13, 1985, a private car stopped outside a jewelry shop in a nostopping area in Prince Edward Road, Kowloon City. Four masked entered the jewelry shop with pistols. One of the shop’s security guards spotted the robbers and rushed out to sound the alarm. After entering the jewelry shop, the robbers pointed their pistols at the staff and customers. They snatched a quantity of gold items and thenfled. A sergeant and a police constable were alerted to the robbery by a pedestrian. They ran to the scene and came face to face with the gang. They shouted to the gang who then took a security guard hostage. While walking to their car, the robbers fired shots. The sergeant and constable dared not return fire in fear of hurting the hostage. The other security guard, who had fled earlier, returned with another police constable to help the sergeant and the constable. They were shot at by the robbers in the car and returned six shots. A gun battle ensued with a

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total of 18 and seven shots were fired by the police and the gang respectively. No arrests were made. (Wah Kiu Yat Pao March 14, 1985) (103) At about 8:00 p.m. on March 28, 1985, a neighbor heard someone shouting “robbery,” and then spotted a naked man in Room 1611, Fu Hai Building, Lek Yuen Estate. Inside the house, the man’s mother lay on the floor in blood. The neighbors immediately called the police. The police soon arrived and ordered the man to open the door. The man rushed out with a knife and fled downstairs. The woman was dead. The police searched for the man nearby and found him under the bridge in the Wing Shui Building opposite. The man attacked a policeman with a knife. A sergeant and a policeman fired three shots and killed the man. The man had gone insane following the death of his father. (Sung Pao March 29, 1985) (104) At about 8:30 a.m. on April 2, 1985, Cheung, person in charge of a rehabilitation center, was ordered to retire. He met the new person in charge, Lee. They had a dispute about the work problem and a struggle ensued. In the struggle, Lee’s head, hands and face were stabbed with a small knife. Cheung then forced Lee into a 10-square-meter room on the first floor of the hostel with him. The other staff tried to persuade Cheung to let Lee go but in vain.. Cheung threatened to kill Lee if anyone forced entry. The staff called the police. About 20 policemen with batons, weapons and bulletproof vests soon arrived with a psychologist. They surrounded the room for 14 hours. At 10:30 p.m., Lee tried to escape. The policemen then fired eight shots in order to attract Cheung’s attention. The policemen then broke down the door with an axe and within eight seconds had arrested Cheung and saved Lee. (Tai Kung Pao April 3, 1985) (105) At about 10:15 p.m. on May 1, 1985, police officers who had been acting on a tip about a robbery, laid an ambush outside Time Watch Co on Nathan Road, Tsim Sha Tsui. Initially the six-man gang grabbed a female employee of the shop as a hostage and fired two shots into a glass showcase. More than $1.8 million-worth of luxury watches were grabbed by the gang. Hiding behind a taxi in Nathan Road the police exchanged fire with the gang. More than 120 shots were exchanged. It was possible that some of the robbers wore bullet-proof vests. The seven injured officers included a European detective inspector, a detective sergeant, a station sergeant and four detective constables, all from Kowloon Regional Crime Unit. Also hurt was a pedestrian and a Pakistani security guard at the watch company. They were all in fair condition. The gang later stole a second van in Middle Road and headed toward Salisbury Road, getting out in a Kowloon City street and hijacking a taxi to make good their escape. Police later found the hijacked and damaged taxi in Kowloon Tong with bloodstains in the car. Two guns, one .38 caliber and the other a .375, were found near the watch company. The ambush was laid before 10:00 p.m., and most of the 50 RCU officers involved were wearing bulletproof vests. (SCMP May 2, 1985)

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(106) At about 10:50 p.m. on July 6, 1985, three men with steak knives entered a Chinese restaurant in Tai Kok Tsui and declared a robbery. The robbers injured the left ear of one of the restaurant owners when he tried to confront them. Another owner fled during the chaos to alerted policemen on patrol nearby. When the robbers saw the policemen, they fled. The policemen then drew their service revolvers and warned the robbers to stop. They fought with three robbers and in the struggle, one policeman fired two shots and another fired one shot. All the robbers were shot. One of the robbers was seriously injured while the other two only slightly. They were all arrested. The right hand of one of the policemen was injured. (Sung Pao July 7, 1985) (107) At about 1:20 a.m. on July 19, 1985, four robbers armed with knives and pistols robbed a restaurant at 164, Un Chau Street, Sham Shui Po. The police, acting on a tip about the robbery, laid an ambush nearby. The robbers fled. They fired one shot but no one was hit. Later, a policeman arrested the four-man gang in a wooden house nearby and found two pistols. Two employees of the restaurant were slightly injured. (Oriental Daily News July 19, 1985) (108) At about 3 a.m., on July 29, 1985, the police received a call that a driver refused to pay for gasoline at a station in Prince Edward Road. Twenty minutes later, a policeman at a roadblock in Chatham Road spotted the non paying white van. The officer ordered the driver to stop. However, the van made a turn and drove onto the street sidewalk. The driver also tried to crush the policeman, who fell while trying to dodge the van. He then fired three shots at the van but the van still fled. Half an hour later, the white van was found on fire in Pak Hoi Street, Yau Ma Tei. There was a bullet mark on the right of the car, but nobody was inside. (Ming Pao July 30, 1985) (109) At about 9:45 a.m. on September 3, 1985, a 27-year-old police constable attached to the Shek Kip Mei police station spotted a man rushing out of Lai Chak House in Chak On Estate, Tai Wo Ping. The constable tried to intercept the suspect, who then grabbed a steel bar lying on the ground and lunged at the constable. The policeman tried to use his baton to fend off the attack, but the suspect grabbed his arms. In the ensuing scuffle, both men fell to the ground by the roadside. The suspect also grabbed the constable’s service revolver. A woman passing by dialed 999 [emergency services number]. The suspect fled from the scene with his right hand tucked inside a pocket of his trousers. The constable stood up with his head bleeding and tried to chase the suspect, but soon collapsed. He was taken to the Caritas Medical Centre where he was treated and discharged. At about the same time, another policeman alerted about the incident on his beat radio saw the suspect stop a taxi near the Tai Wo Ping roundabout outside the estate. The man pointed a gun at the taxi driver. The constable stopped another taxi and chased him along Ching Cheung Road and Butterfly Valley Road down to Castle Peak Road. The robber was later seen getting out of the taxi outside the

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Yick Tai Industrial Building at 652 Castle Peak Road. About 150 men from the police tactical unit, armed with rifles and wearing bullet-proof vests, were called in for a floor-to-floor search of the building, but no arrests were made during the two-hour search. (SCMP September 4, 1985) (110) At about 2:30 p.m. on September 21, 1985, detectives investigated the discovery of a man’s body after a blaze in a flat at Kam Kong Villa in Kam Tin. Alerted by children about a car that was parked outside the flat before the blaze, police were about to close in on the car when a man sitting beside the driver drew a pistol and fired two shots before speeding off. The car was later located at Ka Po Tsuen near Kam Tin Road, but the two men had already disappeared. (Tai Kung Pao September 22, 1985) (111) About three hours later, at the Shatin entrance to Lion Rock tunnel, the driver of a car approaching a police roadblock accelerated when police signaled it to stop. A gun battle ensued. A total of 12 shots were exchanged before the car turned around and sped away. The investigation centers whether the gunman was involved with an armed robbery gang that has struck several times in Kowloon this year. (Tai Kung Pao September 22, 1985) (112) At about 4:05 a.m. on October 4, 1985, the security guard at the Hong Kong Industry Building in Tak Fu Road heard the eleventh-floor alarm ringing. He immediately closed the building’s gate and called the police. A team of policemen came to investigate. They surrounded the building and called up the owner Cheung. The police officers and Cheung opened the gate of the factory on the eleventh floor. They spotted four men inside. One of the men with a sharp weapon rushed toward a police officer. The police officer fired a shot but no one was hit. The other three culprits were arrested, without incident. One culprit tried to climb the water pipe to flee but he fell onto the balcony of the fourth floor. He was then arrested and sent to hospital. As the security guard had not seen any strangers enter the building, it was believed that the culprits entered the building through the ventilation tunnel. (Sung Pao October 5, 1985) (113) At about 11:45 a.m. on December 24, 1985, a private car parked outside Chau Sang Sang jewelry company in Nathan Road, Mong Kok. While one man stood outside pointing a pistol at the security guard, three other robbers grabbed jewelry worth at least $600,000. When the robbers fled, they saw a sergeant riding a motorbike passing by, and fired one shot at him. The sergeant quickly dodged the shot and the motorbike overturned. The robbers fired three more shots. They then got into a car parked there earlier and fled toward Mong Kok. The sergeant wanted to return fire but had no opportunity. He then chased the private car. A pedestrian observed the robbers got into a van and fled. (Wah Kiu Yat Pao December 25, 1985)

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(114) At about 7:30 p.m. on March 23, 1986, five robbers armed with a pistol, axes and an iron club grabbed a passing woman and entered a jewelry shop in Nathan Road, Yau Ma Tei. They took six trays of gold items worth about $1,000,000. As they were fleeing they encountered a few police officers and exchange fire. It startled the pedestrians and the scene turned to chaos. One robber took the jewelry and got into a pre-parked red private car and fled . Another two robbers fled toward Mong Kok. One robber was shot and bleeding. They entered Chak Fung Building, opposite the jewelry shop. The security guard of that building saw one of the men bleeding and closed the gate and called the police. One robber’s hand was hurt and was arrested near Kowloon Magistrate. (Sung Pao March 24, 1986) (115) At about 10 a.m. on September 8, 1986, two employees, Lee and Lau, of a jewelry shop delivered gold items from Yau Ma Tei to Tsuen Wan. The gold was put into a white bag and was taken by Lee. While they were waiting for a taxi at the junction of Temple Street and Ling Po Street, a 31-year-old thin robber pointed a pistol at Lee. A fat robber then grabbed the white bag. Lau and Lee tried to confront them but failed. The robbers then got into a red private car and fled. A sergeant on patrol came face to face with the gang. One of the robbers pointed a pistol at the sergeant, who immediately took cover behind a van. The robber fired one shot and then fled. No arrest was made. A man was shot causing his head to bleed. The red private car was later confirmed as a missing car. (Oriental Daily News September 9, 1986) (116) At about 10:15 a.m. on April 16, 1988, four gangsters robbed a jewelry shop at Nathan Road. After the robbery, they fled in a car but ran into a traffic jam. The police arrived at the scene and chased the robbers’car. The culprits fired one shot at the police and the police fired 10 shots in return. One of the culprits was killed and two others were seriously injured; one ran away. No police officers were hurt in the incident. (Oriental Daily News April 17, 1988) (117) On January 28, 1989, shortly after 6:00 p.m., four armed men walked through the Hilton Hotel’s main entrance on Queen’s Road. They entered the Hankow jewelry shop in the lobby. They threatened the staff with pistols and took watches and jewelry from the display cases. They escaped by way of Garden Road where they came upon a police sergeant on a motorcycle. They fired two shots and missed the officer, They fled down Queen’s Road toward Charter Gardens, dropping a bag containing some of the jewelry as they ran. They were then confronted by another policeman responding to the hotel’s emergency call. Panicking, the robbers commandeered a taxi and fled. Again the escape attempt went wrong when their taxi was held up by traffic at Ice House Street. Abandoning the taxi, the four men left behind another bag containing more stolen goods and ran back in the direction from which they came. One veered off and sprinted into a shopping arcade in the Hang Chong Building. There, he was cornered by a police sergeant and arrested. The others eluded. (HK Standard January 29, 1988)

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(118) In June 1991, five masked men exchanged more than 40 shots with police after robbing five jewelry shops in Mut Wah Street, Kwun Tong. They escaped with $10 million in gold ornaments. Nine months later, eight masked gunmen fired at least 50 rounds at police before escaping with $47 million worth of jewelry from two goldsmith shops in Tai Po road, Sham Shui Po. Police returned about a dozen shots. A total of five policemen and three passers-by were injured. (SCMP October 26, 1998) (119) At about 7:20 p.m., on January 5, 1992, two men questioned by officers during a routine “stop and search” operation in Tai Po ran off and then opened fire. Police returned fire .At least 11 shots were fired during the incident. A 27-year-old police officer was shot in the right foot. An attacker hijacked a taxi at the junction of Kwong Fuk road and fired a further shot to make good his escape.. Officers then returned fire, using six rounds, but failed to stop the fleeing taxi. The taxi was later found abandoned near the Tai Po Kau marine base. It was the second time in less than a week a police officer has been shot during the execution of his duty. The first instance occurred last Thursday. A police constable was shot in the abdomen when a suspect, was stopped and searched in Tsim Sha Tsui. (SCMP January 6, 1992) (120) On February 15, 1993 at about 1:00 p.m., police shot dead an armed robber and arrested three other suspected gang members at North Point gold shop. Three policemen were hurt during the battle with the gang. Two men with handguns and grenades burst into the Emperor Gold and Jewelry Company in King’s Road while another kept watch outside. The raiders escaped with gold ornaments valued at more than $100,000. They fled through Kam Ping Street. Four police officers pursued the gang up the street. When the robbers shot at them, they returned 11 shots from pistols and shotguns. As another dozen officers began arriving, one of the robbers threw a pineapple-style grenade, injuring three of the policemen. Constable Leung Kin Ming, 32, suffered shrapnel wounds to his legs, while constables Yu Hoi Ming, 28, and Chow King Man, 23, suffered minor injuries from flying fragments. The three members of the gang who carried out the raid are believed to be illegal immigrants while the 33-year-old alleged driver held a Hong Kong identity card. One of the suspects was chased and caught by the driver of the Granada, while police arrested another. (SCMP February 16, 1993) (121) A gun-snatching case happened in Sham Shui Po in the morning of March 16, 1994. A Shekkipmei Constable Ng Fong-yuen, 19, was shot in the stomach and was in fair condition at Kwong Wah Hospital. A 35-year-old suspected car thief was hit twice in the head and once in the chest and was also in fair condition, in Caritas Medical Center. The suspect fired four shots from Constable Ng’s service revolver. Police returned 29 shots, including 23 rounds from 0.38 special revolvers and six shotgun rounds. This case called for the using of new police quick-draw holsters that are much safer and fasrer. (SCMP March 17, 1994)

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(122) On May 13, 1994, a Cantonese-speaking trio armed with Chinese Black Star pistols shot four people as they fled through the Landmark building and Central MTR station after robbing the Precision Watch company in Swire House. Police Constable Chan was shot in the left leg and was in satisfactory condition. Three other police officers each sprained an ankle. One woman was shot dead and two passers-by injured. A $500,000 reward was offered to catch the gang. (SCMP May 19, 1994) (123) At midday on August 18, 1998, an auxiliary police officer, Sergeant Chau, was in the Belgian Bank in Castle Peak Road, when he noticed a man acting suspiciously outside a side entrance. When Sergeant Chau left the bank, a gunman fled. Both men ran into a nearby residential block where the gunman opened fire on the landing between the ground and the first floor. The officer fired back before calling for assistance. He then struggled with the gunman. A widespread search failed to find the gunman, aged about 30. In the struggle, sergeant Chau injured his right elbow and forearm. (SCMP August 19, 1998)

Chapter 4

Beat Patrol Deployment in Hong Kong The debate about the safety and effectiveness of deployment in police cars is not new … Often the facts surrounding this issue are obscured by emotional appeal. One Officer vs. Two Officers Car in Winnipeg (February 2001)1

Introduction On March 14, 2001 a young Hong Kong Police (HKP)2 Constable (PC), Leung Shing-yan, was shot and killed in the line of duty. The cold-blooded murder shocked everyone in Hong Kong and people grieved openly for the loss of a brave public servant. HKP officers cried deeply, hurt at the demise of a fallen comrade.3 All wanted justice to be quickly served; a few demanded vengeance at all costs.4 The incident aroused fierce public debate over whether the HKP should adopt a single beat (SB) or double beat (DB) patrol deployment policy.5 As intimated above, the public debate was driven more by emotion than rationality and consumed by conviction rather than analysis. Increasingly, the debate has been

1  Brief Analysis from Frontier Centre for Public Policy, (Visited August 6, 2001). 2  “The Hong Kong Police Force has operational responsibilities for crime prevention and detection, the maintenance of law and order, traffic matters and the detection of illegal immigration. The 34,622-strong force consists of 28,585 disciplined staff and 6,037 civilians. There are also 5,721 volunteer citizens of the Hong Kong Auxiliary Police Force. Reported crimes in 1998 totaled 71,962, an increase of 6.8 percent compared with 67,367 crimes recorded in 1997. The crime rate stood at 1076.1 cases per 100,000 of the population, an increase of 3.9 percent, compared with 1997. Despite the slight increase, the force’s dedication in maintaining the law and order of Hong Kong ensured that the Special Administrative Region (SAR) remained one of the most secure and stable cities in the world.” ttp://www.police.gov.hk/ppp_en/index.html (Visited March 29, 2012). 3  “Next Saturday, Police is to Organize the Largest Funeral Since Hong Kong was Settled, the Event is Capable of Hosting 20,000 (下 周 六 舉 行 可 容 二 萬 人 警 辦 追 悼 會 開 埠 最 大), Apple Daily, March 17, 2001. “Force mourns fallen PC,” Offbeat (The newspaper of the Hong Kong Police Force), issue 699, March 21 to April 3, 2001. 4  A reward of one million dollars was being offered for information leading to the capture of the criminal(s). This is unheard of. “Reward is the Same as Thief of Thieves Yip Kai Fun, One Million is Being Offered to capture Cop Killer” (賞 金 與 緝 賊 王 葉 繼 歡 相 等 百 萬 懸 紅 緝 殺 警 者), Apple Daily, March 15, 2001. 5  Stella Lee, “Police Patrol in Pair Pending Beat Review,” SCMP, March 16, 2001, p. A2.

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tainted by factional interests, overtaken by institutional agenda and confounded by political considerations.6 This chapter addresses the broad range of policy issues raised in the SB vs. DB debate. What are the critical issues involved? How should such a policy debate be resolved? Where do we look for evidence in support of a SB or DB policy? What are the pros and cons of both patrol deployment measures? More importantly, what immediate and effective remedial steps can be taken to protect front-line police officers’ safety without compromising the general public’s expectation for law and order? In so doing, this chapter argues for a more informed discussion and reflective deliberation in pursuit of an enlightened police patrol deployment policy. This chapter caters for two kinds of academic audience: first, comparative police scholars who are interested in policing in Hong Kong; second, China scholars who are interested in policing in Hong Kong.7 For both of these groups, research into the HKP is just beginning. Particularly, there is no relevant police research study on either the SB vs. DB debate or on assaults on police leading to injury in the line of duty in Hong Kong.8 This chapter is a first attempt to fill this noted literature gap.9 On a more practical front, this chapter also provides the HKP community— policy makers, operational managers and front line officers—with relevant research literature and pertinent empirical data (mainly from the United States; the country with the most police officers killed in the line of duty and the one with the most experience in dealing with the one vs. two officer patrol debate) to help understand the issues involved and resolve the debate at hand. The chapter explores and untangles issues in the SB vs. DB debate in a systematic and comprehensive manner. There are nine sections to this chapter. Following this introduction, section I provides a brief literature review of the two lines of most relevant research informing this debate: policy research on one vs. two officer patrol and empirical research on assaults on police in the line of duty. As a matter of focus, section II sets forth the issues raised and positions taken in the SB vs. DB public policy debate in Hong Kong in the wake of the incident described above. As a matter of context, section III outlines the facts and 6  “One Accused of Neglecting Junior Staff, One Observed Taking the Opportunity to Make a Fuse, Killing of an Officer Reviewed Police Internal Discord” (一 指 忽 視 下 層 一 指 借 題 發 揮 殺 警 案 掀 家 醜 警 隊 內 訌), Apple Daily, March 21, 2001. 7  See Kam C. Wong, “The Philosophy of Community Policing in China,” Police Quarterly, 4(2) (2001): 186–214. (There is little research on policing in China. Comparative criminal justice scholars have failed to include PRC’s emerging criminal justice system within their purview.) 8  My own literature review, as confirmed by Chief Superintendent of Police, Charles Wong, PPRB, March 25, 2001. 9  For a literature review on police studies in Hong Kong, see Kam C. Wong, “Criminal Justice Education in Hong Kong” (December 15, 2000) (unpublished paper on file with the author).

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circumstances giving rise to the SB vs. DB debate in Hong Kong. As a matter of caution, section IV sounds the alarm against a rush to judgment as it calls for a more reflective evidence-based decision-making process. This study continues with the observation in section V that we have far too little factual information about the case at hand, on the reasons for the murder, and still less reliable empirical research data in stock on the prevalence and distribution of assaults on police officers resulting in injury in the line of duty in Hong Kong to make an informed policy choice. Section VI points out the problems with DB and section VII observes its benefits. Section VIII concludes by observing that the risks of injury to front-line officers are either unpredictable or unavoidable, or more likely both. They can best be reduced through proper training and continuing education, as supported by advanced life-saving technology and enlightened police–citizen encounters policy. More radical policy change in the demilitarization of the HKP is also suggested. I. Literature Review Two lines of research serve to inform the SB vs. DB debate, in turn providing general orientation and an overall structure for this study. The first line of research focuses on how the SB vs. DB policy debate has been discussed, i.e., issues raised and arguments structured.10 The central issue raised by this line of policy-oriented research is one of safety vs. effectiveness. Such kinds of policy debate are usually conducted within the context of how to improve existing police service within a jurisdiction. They usually draw upon professional experience to support various claims asserted and argumentations advanced, e.g., one-officer cars have a higher rate of injury while two-officer cars are more complaint prone. They are rarely supported by any empirical study on the critical issue of the relative efficacy or efficiency of one vs. two officer patrols. To date, there is no systematic research designed to test the hypothesis that two-officer patrols are safer, from various sources of assault, than one-officer patrols. Thus, the “safety in number” proposition is at best unsubstantiated, at worst a myth. Nor is there any rigorous empirical research to show that single-officer car patrols are more effective in reducing crime. Hence, the assumption that single-officer patrols 10  See the debate between O.W. Wilson, “One-Officer Patrol Car,” Police Chief, May (1982): 18–24. (One-officer police patrol car is more cost effective); Richard Johnson, “The Advantage of Two-Officer Patrol Teams,” Law and Order, January (1999): 68–70 (Police Foundation research shows that two-officer patrol is more likely to be assaulted by citizens); Chicago Police Department 1963 Training Report, “One-Officer Patrol Car,” in Police Patrol Readings, 2nd edition (Springfield, IL: Charles C. Thomas, 1970), pp. 212– 20. (Two-officer police car is more safe.) The President’s Commission on Law Enforcement and Administration of Justice, Task Force Report, Table 1, page 55, noted that there was a general move from two-officer police patrols to one-officer police cars.

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allow for greater police coverage and lower crime rates is at best unsupported, at worse false. Policy Research into One vs. Two Officer Patrols This line of research is exemplified by the work on One-Officer versus Two-Officer Police Cars in Winnipeg11 (Winnipeg Policy).12 The Winnipeg Policy begins the policy debate by observing that notwithstanding the fact that Winnipeg has a largerthan-most police presence in Canada with 182 officers/100,000 population,13 the city has a lower than average detection rate at 9,763/100,000 or 25 percent.14 The Winnipeg Policy attributes the observed low clearance rate to inefficient deployment and ineffective distribution of police resources. Particularly, the City of Winnipeg police department suffers from an inflexible two-officer police car deployment policy. In the City of Winnipeg, one-officer cars are deployed between 7 a.m. and 7 p.m. except for priority calls. Between 7 p.m. and 7 a.m. two officers must be deployed.15 Having raised the issue, the Winnipeg Policy attempts to show that one-officer cars would increase coverage, reduce response times, use resources more effectively, and create a more attentive police force, with no loss of safety for the officers. In making the case for one-officer cars, the Winnipeg Policy describes many modes of mixed one vs. two officer patrols that can maximize both officer safety and public security: • The RCMP [Royal Canadian Mounted Police] has an exclusively oneofficer-per-car deployment policy. 11  < http://www.fcpp.org/publication.php/178 > (Visited March 28, 2012). 12  For a similar study, see “Chapter II: Police Staff and Deployment in Report of the Task Force Studying the Akron Police Department” (February 1, 2000), (Visited July 30, 2001). “The report by the IACP indicated that the use of two person assignments by the Akron Police Department is extreme. The national trend is to move away from two person units. Studies conducted by other agencies indicated that departments that utilize one-person units actually have a reduction in incidents of officer injuries, resisting arrests and use of force. In addition, the calls for service per unit were reduced with the inception of one-officer units.” 13  Average for all Canadian cities is 169 officers/100,000 population: Thunder Bay (187); Winnipeg (192); Regina (173), Montreal (173); Toronto (167); Saskatoon (151); Halifax (151); Victoria (149); Edmonton (146); Vancouver (141); Quebec (136); Ottawa (132); Calgary (132). 14  Thunder Bay (56 percent); Winnipeg (25 percent); Regina (40 percent); Montreal (27 percent); Toronto (38 percent); Saskatoon (42 percent); Halifax (22 percent); Victoria (32 percent); Edmonton (42 percent); Vancouver (16 percent); Quebec (26 percent); Ottawa (23 percent); Calgary (32 percent). 15  The deployment of two-officer patrols is mandated by the labor contract with the Winnipeg police service.

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• The Indianapolis Police Department has a one-officer-per-car policy, except in cases of dangerous assignments when two or more officers will be deployed. However, officers are trained and instructed to wait for backup when confronted with serious or dangerous situations. • The Saskatoon Police Department has a one-officer-on-patrol policy until 11 p.m. when officers start to pair up. Like Indianapolis, two officers are required with “priority one” calls, e.g., domestic disputes, 911 and weaponrelated calls. • The City of Halifax runs one and two officers per car 24 hours a day. The key lesson learned is that cost-effective patrol deployment requires flexibility and prudence, something that is lacking in the Winnipeg police oneofficer car deployment policy. The Winnipeg Policy goes on to recount the pros and cons of one officer vs. two officers per car. Arguments in favor of two-officer cars include: increased safety, increased observation (capacity), increased aggressiveness and increased observation. Arguments in favor of one-officer cars include: increased coverage, shortened response times, increased observation (alertness), better use of resources and added safety (prudence). Drawing upon this line of research, we learn valuable lessons in conducting the SB vs. DB policy debate: 1. There is currently no empirical research bearing on the issues of safety vs. efficacy attending the SB vs. DB debate, in Australia,16 US,17 UK18or Hong Kong. 2. The SB vs. DB policy debate if conducted in the public is given to emotional appeal and political grandstanding. 3. SB vs. DB offer separate and distinct benefits as well as drawbacks. A fully informed, properly considered and well-balanced policy debate must take into account all the pros and cons of the two competing deployment policies to formulate an integrated patrol plan as a comprehensive whole. 4. There is no right or wrong, only a more optimal, patrol deployment policy choice. The appropriateness of a beat deployment policy has to be considered with reference to a number of factors, e.g., environmental context (what kinds of cities) and situational factors (what kinds of calls). The decision-making process is one of balancing of utilities, i.e., seeking 16  See for example Institute of Criminology Web, Publications Catalogue (Police), (Visited August 8, 2001). 17  See for example, Publications of National Institute of Justice, (Visited August 8, 2001). 18  See Publications of Policing and Reducing Crime Unit, Police Research Group, Police Research Series, London: Home Office Department, (Visited August 8, 2001).

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to optimize one set of benefits, e.g., public safety, in the face of other competing concerns, e.g., officers’ safety. Empirical Research into Assaults on Police The second line of research reports upon the incidences, prevalence, nature, causation and prevention of assaults on police officers.19 In the process, the literature touches upon, albeit tangentially, the issue of whether police officers are more likely to be assaulted on SB or DB assignments. More generally, given what we know to be the causes contributing to or factors associated with assaults on police officers, the question is whether DB will be likely to prevent or reduce such incidents; alternatively, what steps or measures can be taken to improve upon police street survival in the line of duty and while on patrol? Systematic and comprehensive investigation into assaults on police officers began in earnest with the publication of Perspectives on Police Assaults in the South Central United States20 in 1974.21 This research aroused public interest, defined research methodology and set the scholarly benchmark for such studies

19  Samuel G. Chapman, Murder on Duty: The Killing of Police Officers in America (Springfield, IL: Charles C. Thomas, 1998). (3,367 police officers have been murdered in the line of duty form 1945 to 1994, an average of 67 deaths each year.) For more recent data on police officers assaulted, killed and injured in the line of duty, see Sourcebook of Criminal Justice Statistics (Washington DC: Bureau of Justice Statistics, 2000) and US Department of Justice, FBI, Law Enforcement Officers Killed and Assaulted, 1999, FBI Uniform Crime Reports (Washington DC: United States Government Printing Office, 2000). For an analysis of data, see Donald T. Shanahan, Patrol Administration: Management by Objectives (Boston, MA: Allyn and Bacon, 1985), “Officer Safety and Survival,” pp. 324–34. For a more recent analysis, see Harry W. More, Special Topics in Policing, 2nd edition (Cincinnati, OH: Anderson Publishing, 1998), “Chapter 5: Murder and Injury of Police Officers: Nature, Extent, and Trends,” pp. 111–41. For official studies, see US Department of Justice, FBI, Killed in the Line of Duty: A Study of Selected Felonious Killings of Law Enforcement Officers (Washington, DC: US Department of Justice, 1992) and US Department of Justice, In the Line of Duty: Violence against Law Enforcement (Washington, DC: US Department of Justice, 1997). For an excellent literature review, see Chapman, Murder on Duty, “Chapter 11: A Fertile Arena for Research,” pp. 183–9. 20  For example, the IACP (International Associations of Chief of Police) has published a “Police Casualty Series” with information gathered from newspapers and public journals of when officers were injured or killed in the line of duty. This is of little use for research purposes because of validity problems. See Police Casualty Series published by the Police Weapons Center, Management and Research Division (International Associations of Chief of Police). 21  Samuel G. Chapman (Project Director), Charles D. Hale (Assistant Project Director), C. Kenneth Meyer (Director of Research), Perspectives on Police Assaults in the South Central United States, Vols. I, II, III (Washington DC: The National Institute of Law Enforcement Assistance Administration, US Department of Justice, 1974).

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up to now.22 Before then, data on police officers injured and killed in the line of duty were kept by respective law enforcement agencies, in unsystematic and eclectic ways. The FBI was the first to systemize the collection of data on assaults on police nationwide in the US. From 1960 to 1971, the FBI asked federal and local police agencies to supply annual information on a prescribed form on (1) the number of full-time officers killed in the line of duty; (2) the total number of police assaulted; (3) the total number of injury and non-injury assaults; (4) the type of weapons used. On January 1, 1972, the FBI introduced the “Law Enforcement Officers Killed or Assaulted” form which requires police agencies to report on the activities police were engaging in and the type of assignments being undertaken when assaulted or killed. It is the latter kind of data that is of most interest and use in providing a factual foundation and scientific base for policy formulation. What is of interest here about this line of research, such as the FBI “Law Enforcement Officers Killed or Assaulted” data on police assignments when assaulted, is that it can tell us empirically about the relative danger of one-officer vs. two-officer patrol assignments by correlating/tabulating police unit assignments with varying rates on assaults on police. As observed by Prof. Chapman: The unit assignment of assaulted officers is of particular interest in light of the one-man, two-man motor patrol controversy …. Table 29 [here printed as Table 4.1] indicates that from the assault population, the greatest percentage (63.1 percent) of assault incidents took place when officers were assigned to one-man units. Over one-third of the assaults (36.9) involve officers assigned to two-man cars … The number of assault events involving officers assigned to one-man units is probably a reflection of the proportion of one-man cars in the typical department … From 1946 to 1964 the percentage of large cities utilizing only two-man cars dropped from 62 to 20 percent. The percentage of all cities using one-man cars exclusively rose from 18 to 41 percent. Almost one half of the smaller cities employ one-man cars only.23

Another interesting observation made by Chapman is that more officers does not necessarily mean fewer assaults on police officers. According to statistics compiled on the number of other officers present when an assault happened, only a minority (12.4 percent) of the incidents have no other officers present and a majority of (87.6 percent) of the cases have more than one other officer present,

22  See for example, Ben Brown, Assaults on Police Officers: An Examination of the Circumstances in which Such Incidents Occur, Police Research Series, Paper 10, Police Research Group (London: Home Office Department), (Visited August 8, 2001). 23  Chapman, Hale and Meyer, Perspectives on Police Assaults in the South Central United States, Vol. I, p. 140.

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Table 4.1

Distribution of Assault Incidents by Unit Assignment (Oneman, Two-man Cars)

Unit Assignment

Number

Percent

One-man unit 643 63.1 Two-man unit 376 36.9 Total 1,019 100.0 Source: Extracted from Table 29 “Distribution of Assault Incidents by Unit Assignment (One-Man, Two-Man Cars),” Samuel G. Chapman (Project Director), Charles D. Hale (Assistant Project Director), C. Kenneth Meyer (Director of Research), Perspectives on Police Assaults in the South Central United States, Vol. I (Washington DC: The National Institute of Law Enforcement Assistance Administration, US Department of Justice, 1974), p. 140.

i.e. one officer present—37.3 percent; two officers present—12.0 percent. The implication is clear—more officers does not mean fewer assaults on police.24 A later study in the same vein shows that one-man patrols and two-man patrols might exhibit different assault patterns, giving rise to the possibility that the two kinds of patrol assignments are dissimilar policing activities and subject to different risk factors for safety vs. effectiveness comparison purposes.25 According to Fridell and Pate incidents of officers slain on one-officer vehicle patrols (1983 to 1992) exhibited the following characteristics: “relatively small proportion ambushed; more likely than other assignments to be dispatched; plurality occurred in residential areas; majority occurred outside at the side of the roads; relatively small proportion ‘killed at entry’; plurality intervening in ongoing crimes; primary one opponent; relatively large proportion disarmed and killed with their own weapons; likely to be without immediate assistance,” while incidents of officers slain on two-officer vehicle patrols exhibited the following characteristics: “Similar to one-officer vehicle patrol except: even more likely to be dispatched; more likely to be killed indoors; even more likely to be intervening in ongoing crimes; more likely to be killed with handguns; less likely to be disarmed; much less likely to be without immediate assistance.”26 This line of research informs us: 1. One-man patrol cars are not necessarily more dangerous than two-man patrols. 24  Table 30: “Distribution of Assault Incidents by Unit Assignment by Number of Officers Present,” in ibid., Vol. I, p. 141. 25  Lorie A. Fridell and Antony M. Pate, “Death on Patrol: Killings of American Law Enforcement Officers,” in Roger G. Dunham and Geoffrey P. Alpert, Critical Issues in Policing, 3rd edition (Prospect Heights, IL: Waveland Press, 1997), pp. 581–608. 26  Ibid., pages 591 and 592 respectively.

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2. Two-man patrol cars are not necessarily safer than one-man patrols. 3. The empirical relationship between safety and number of officers on patrol exhibits complicated, complex and contingent patterns and has to be untangled with further controlled research and critical analysis, taking local context and situational dynamics into account. II. The Factual Context for Public Policy Debate: The Murder of PC Leung Shing-yan27 At about 12.05 p.m., on March 14, 2001, the Lei Muk Shue Police Station received a call from a man complaining about excessive noise being made by occupants of a nearby flat. A PC was deployed to the scene. He was dispatched alone because the complaint was minor and of a non-criminal nature. His usual beat partner was at lunch. At about 12.25 p.m., the PC was reported dead outside the same flat on the fifth floor of Shek To House. His service revolver and 12 rounds of ammunition were found to be missing. The case was classified as a robbery and murder. Initial investigations revealed that the PC sustained four gunshot wounds to his left eyebrow, left back, left arm and back of his head. The police were unable to locate the original complainant as the call had been made from a mobile phone using a disposable phone card and no one had recorded and confirmed the caller’s name and contact details. This led the police to suspect foul play.28 The police reacted quickly to contain the damage and ameliorate its impact— stabilizing the PC’s survivors’ emotions, maintaining staff morale, restoring public confidence and so on (summarized in Table 4.2). As with police killings in other jurisdictions, the reaction to the incident followed a predictable and well-rehearsed pattern.29 Thus, within hours of the incident, the Commissioner of Police issued a stern statement condemning the deplorable episode and promising resolute action to bring the culprit to justice: “I would like to express my sincere condolences to the family, friends and colleagues of the Constable. I wish to assure them that resources have been deployed to ensure that a full and thorough investigation into this terrible tragedy is conducted.”30 The statement was meant to address the 27  “Murder and Robbery in Lei Muk Shue,” Add Police Report No. 4. Issued by PPRB (Police Public Relations Bureau). 1800 hours, Wednesday, March 14, 2001. See also “Assassin Ambushed Police, Shot Four Times” (殺 手 設 局 警 中 四 槍 亡), Apple Daily, March 15, 2001, p. A1. Clifford Lo, “Officer Lured to his Death,” SCMP, March 15, 2001, p. A1. 28  Lo, “Officer Lured to his Death,” p. A1. 29  See Chapman, Murder on Duty, p. 38. 30  Statement by Commissioner of Police, Police Report No. 4. Issued by PPRB. 1745 hours, Wednesday, March 14, 2001.

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emotional needs of the survivors31 as much as the psychological well-being of the officers.32 The District Commander of Tsuen Wan, where the incident occurred, immediately ordered that all patrols in the police district be switched to DB, pending review. The next day DB was extended to all New Territories (South) police districts.33 Under normal circumstances and as a matter of HKP management policy, local commanders are given wide latitude in deploying their resources, including beat management. SB is the norm. But DB is used with female officers, at night, in remote areas, on dangerous assignments and as dictated by other circumstances. For example, an SB officer will answer non-criminal and nonserious calls, with back-up if needed.34 The immediate policy change was effected to address the security concerns of agitated police officers suffering the trauma of having had one of their colleagues killed in the line of duty. In the wake of the incident and as a confidence boosting gesture, the Commissioner of Police ordered the immediate deployment of 850 police officers from Police Headquarters, including Police Tactical Units (PTU), to support various police regions in performing front-line duties during that fiscal year.35 This was to address allegations made by the Local Inspectors’ Association and other rank and file officers that the police senior management is uncaring and unsupportive. The deployment of additional officers may have been more symbolic than real. It was certainly intended to silence (internal) critics and court (external) supporters, more than to obtain tangible results in reducing the risk to beat officers. However, more information is needed to ascertain the impact and effect of the additional 850 officers on public safety in the street (actual or perceived) and officers’ security on patrol (real or imagined). The first question to ask is: with the added officers, how many police officers were available operationally at the street level in real terms? The second question is: how were such officers being deployed? In answer to the first question, 850 officers can be translated into 170 beat officers in operational terms. This is hardly a major boost in manpower and unlikely to have any material effect on crime. Answering the second question 31  Francis A. Stillman, “Line-of-Duty Deaths: Survivor and Departmental Response,” Research in Brief (National Institute of Justice) (January 1987). (A survivor’s distress is affected by the police’s response to the tragedy in terms of notification, emotional support and financial support.) 32  Gail A. Goolkasian, Ronald W. Geddes and William DeJong, “Coping with Police Stress,” National Institute of Justice, Office of Development, Testing and Dissemination, Washington DC (1985), pp. 1–12. (“There is a growing recognition among police administrators that the officers under their command are not superhuman.”) 33  Stella Lee, “Police Patrol in Pair Pending Beat Review,” p. A2. 34  Mathew Lee, “Patrols Switch in Wake of Killing,” Hong Kong iMail, March 15, 2001, p. A10. (DC Tsuen Wan has ordered pair patrols for all beats.) 35  “Police to Increase Number of Officers on Frontline Duties,” Police Report No. 3. Issued by PPRB. 2345 hours, Monday, March 19, 2001.

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Table 4.2

149

Policy Implications of HKP’s Remedial Measures on Targeted Audience: Internal and External

HKP Actions

Internal Audience

External Audience

CP Statement

Shows overall organizational leadership in the face of attack: commitment and direction Provides internal support: consolidates support and boosts morale

Shows overall executive leadership in terms of crisis: responsive, confident and competent Pacifies survivors: reduces anxiety; brings closure

Regional Commander NT(S)

Removes public fear of crime Demonstrates coordination of Restores public confidence in effort with HQ order HKP Demonstrates policy initiative and operational leadership to CP Relieves post-shooting trauma to TW officers Removes anxiety on routine patrol

CP deploying 850 more police

Demonstrates commitment: providing full support to frontline officers Reacts to LIA comments Anticipates force-wide concerns OCTB Demonstrates commitment to announcement obtain justice for one of its own of rewards Provides material incentive for general public to report Provides long-term incentive for general public to report Provides material inducement to underground DCP public Draws a clear line between roles debate with LIA of CP and LIA Corrects the record Addresses police officers’ concerns

Addresses public concern with law and order

Demonstrates police’s commitment to do all it can to solve the case Sends a clear signal to criminals not to attack any officer

Defends against public charge of ill administration

requires taking into account the fact that the availability of 850 officers, depending on actual deployment policy and operational practice, may provide little safety to officers on the beat. In this regard, it is noted that PTU has always been deployed to augment regional police strength, e.g., in major crowd control situations or organized crime sweep operations.36 More significantly, PTU deployment is not subject to local command and control. These kinds of deployment might not help 36  “Anti-crime Operation in Wan Chai,” Police Report No. 3. Issued by PPRB. 1300 hours, Saturday, May 27, 2000. (Officers from Wan Chai District together with Police

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local districts reduce risks to officers at the beat level in a targeted way. Ultimately, the presence of more officers (displacement effect due to saturation patrol) might only result in a marginal increase in security (reduction in opportunistic crime) in the areas patrolled. The foregoing analysis does not deny that the addition of 850 officers might, in measurable ways, provide a psychological morale boost for police officers (internal impact) or reduce fear of crime in the minds of the public (external impact). Police also offered a reward of $1 million, a record sum,37 for information leading to the arrest and prosecution of the culprit(s).38 Such a large reward could encourage defection from the underworld and help keep interest alive among the general public. Symbolically, the reward shows that the HKP is doing all it can to bring the murderer to justice. III. The Issues in the Public Debate: Officer Safety vs. Patrol Productivity Literally within days, if not even hours of the incident, concerned public and distressed police officers called on the HKP to review its beat patrol deployment policy.39 Currently, beat deployment is a local commander’s prerogative. Particularly whether police officers should patrol in SB or DB mode. On March 17, 2001 Lau Kam-wah, Chairman of the Junior Police-Officers’ Association and Tony Liu Kit Ming of the Local Inspectors’ Association called upon Assistant Commissioner of Police (operations) Cheung Ch-sum to review patrol deployment and practices. The public debate centers on two main schools of thoughts. The Hong Kong iMail editorial epitomized the popular “reactive” school of thought: “For a start, police officers should not be required to go into situations alone. Even a routine investigation of a noise complaint can have the most deadly consequences, as yesterday’s incident has shown.”40 This position is supported by Legislator Lau Kong-wah of the Democratic Alliance for the Betterment of HK: “I think police officers are in danger at any time and any place. It’s safest for at least two officers to patrol together.”41 Tactical Unit and Regional Anti-triad Unit of Hong Kong Island mounted anti-crime operations and arrested 62 in the morning of May 27, 2000.) 37  “$1m to Catch Cop Killer,” Hong Kong iMail, March 15, 2001, p. A5. (This is the highest reward offered following the slaying on an officer. The next highest was $500,000 for arrest following the murderer of another PC who died in September 1993. That case remains unsolved.) 38  “Reward for Detection of PC Murder Case,” Police Report No. 2. Issued by PPRB. 1830 hours, Friday, March 16, 2001. 39  Stella Lee, “Shooting Sparks Manpower Debate,” SCMP, March 15, 2001. 40  Editorial, “Safety First,” Hong Kong iMail, March 15, 2001, p. A10. 41  Stella Lee, “Shooting Sparks Manpower Debate.”

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The opposing, more professional, “reflective” point of view was supplied by an editorial in the South China Morning Post: “Yet the number of times that policemen on duty are attacked in any way remains small … If manpower permits, double patrols could be introduced. But are they needed? ‘No-go’ areas do not exist here, and any suggestion that police should not venture out alone is simply a knee-jerk reaction to a terrible, but isolated, event.”42 This position is supported by Democratic Party Legislator To Kun-sun: “I believe this was an isolated incident. Deploying two officers to patrol together would reduce the beat coverage area.”43 The Chief Secretary for Administration, Chan Fang On-sang has come out in favor of SB but says it is up to the professional to decide.44 As expected, police officers’ representatives want more safety for the beat officers, claiming that if only the HKP had in place a DB patrol system, the tragedy might not have happened.45 Equally adamant, police administrators argue for the more prudent use of limited police resources in the face of rising crime rates and increasing demand for services. DB patrols should be carefully deployed in order to maximize security for police officers but without compromising the protection of citizens.46 Deputy Commissioner of Police Lau Yuk-Keun thinks the HKP needs “to deploy its resources practically, flexibly and appropriately. It would be up to district commanders to decide when officers would patrol in pairs or alone.”47

42  Editorial, “An Isolated Tragedy,” SCMP, March 15, 2001, p. A17. 43  Stella Lee, “Shooting Sparks Manpower Debate.” 44  Mathew Lee, “Patrols Switch in Wake of Killing.” 45  “Urges Senior Management to Add More Staff, Not to Fool Oneself Anymore, Police Suggest that Single Beat Lead to Tragedy) (促 高 層 添 人 手 勿 再 自 欺 欺 人 警 員 指 單 獨 巡 邏 釀 悲 劇). There are three police officers’ associations in Hong Kong, representing a colonial legacy of clearly demarcated hierarchy. The positions of the respective police officers’ representatives/associations are much more nuanced, in some cases contradictory. Larry H.K. Leung, Chairman of the Superintendents Association, does not support a compulsory DB system. It all depends on the kind of cases. Lau Kamwha, Chairman of the Junior Police-Officers’ Association, likewise thinks that DB is not necessary if properly equipped and backed up. Tony Liu Kit Ming of the Local Inspector’s Association is more ambivalent and shifting. At one time he was heard to remark: “Sending two officers on patrol in all areas may be a waste of resources.” On other occasions he accused the police senior management of obeying orders and pursing reform, i.e., cutting staff, without taking the welfare of the staff into account. See Mathew Lee, “Patrols Switch in Wake of Killing,” p. A10. 46  The position of the senior management is that the issue of police beat deployment should be made the responsibility of the officer in charge of the area or region, not a centrally imposed, HKP-wide policy. Within days of the incident, in a melodramatic move, the Commissioner ordered 850 HQ staff to be reassigned to the field. 47  Stella Lee, “Senior Officer Hits Out at ‘Irresponsible’ Criticism,” SCMP, March 19, 2001, A2.

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IV. The Need for Detached Reflection The issue being debated—SB vs. DB—is a complicated,48 contentious and increasingly politicized, public policy issue.49 In Hong Kong, as elsewhere around the world, the issue comes up every time a police officer is assaulted, injured or killed in the line of duty.50 The debate is a complicated policy problem-set because it involves many nuanced and interconnected issues, and implicates still more subtle and divergent interests. It is a truly polycentric decision making set. Moreover it is a contentious issue because it challenges commonly accepted factual assumptions (there is safety in numbers), deeply held values (the sanctity of police life) and fiercely defended organizational interests (the prerogative of the police administration vs. the participation of police officers). Failure to resolve the issue in a timely and appropriate (principled, objective, balanced) fashion will be sure to cause irreparable damage to police morale, irrecoverable loss in public confidence and permanent erosion of competency and legitimacy at the HKP. Given the great challenge ahead and the grave implications involved, the SB vs. DB debate should be conducted in a rational and informed manner with a broader perspective in mind, i.e., with a view to the future and in the context of the larger society. Lastly, as observed by a leading text in police administration: “The planner should consider the extent to which the different courses of action are likely to produce the desired goal, the assumptions underlying each course of action, and the criteria judging the strength of each course of action.”51 Finally, some decision, any decision, here and now, is not necessarily better than no decision at all. First, rash decisions are not theoretically informed, empirically tested and experientially borne out. Second, in the current climate, a politicized decision will cater to some interests (police safety) more so than others (public order). Third, a fashionable decision will focus on limited, particularly tangible and short-term considerations (police safety, public order) without giving

48  Carlene Wilson and Neil Brewer, “One- and Two-Person Patrols: A Review,” Journal of Criminal Justice, 20(5) (1992): 443–54. (The original impetus behind oneofficer patrols was economic. Upon review, the debate expanded to a number of issues: effectiveness, cost, safety, attitude.) 49  Amy Silverman, “Two-Cop Cop-Out?,” phoenix.newstime.com, August 4, 1999, http://www.phoenixnewtimes.com/issues/1999-04-08/columns2.html (Visited March 21, 2001). (When an officer is senselessly murdered, the deliberative process and rational discourse dies with it.) 50  See Chapman, Murder on Duty, p. 36. 51  For the importance of scientific research in police policy formation see, William A. Geller, ed., Local Government Police Administration, 3rd edition (Washington DC: International City Management Association, 1991), “Research, Planning, and Implementation,” pp. 331–61, 350. For the mechanics of policy analysis, see William N. Dunn, Public Policy Analysis (Englewood Cliffs, NJ: Prentice-Hall, 1981), esp. Part Two.

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due regard to other more intangible, broader and long-term considerations (force management structure, staff–officer relations). V. The Call for Informed and Reflective Decision-making How then should the HKP community begin the policy analysis and decisionmaking process to reflect on the problem at hand and resolve the issues at stake? The first point to make is that assaults on police officers while on duty are rare, some say “random” or “isolated,” events.52 This means that Hong Kong, like the United States,53 has very little aggregate, reliable and valid data from which to discern a preventable pattern, much less uncover avoidable causes, vis-à-vis the risk to police of attack while on the job.54 A search of the Hong Kong government information website uncovers only a handful of assaults on police in the last five years. The cases are summarized in Table 4.3. Table 4.3

Law Enforcement Officers Killed: By Type of Activity: 1950– 1994

Type of Activity Responding to disturbance calls (family quarrels etc.) Burglaries in progress or pursuing burglary suspects Robberies in progress or pursuing robbery suspects Attempting other arrests Civil disorders (riots) Handling, transporting, custody of prisoners Investigating suspicious persons or circumstances

Oklahoma 1950–1994 Number (percent) 9 (14.8)

National 1965–1994 Number (percent) 429 (16.3)

3 (4.9)

148 (5.6)

6 (9.8)

434 (16.5)

17 (27.9) – 6 (9.8)

587 (22.3) 15 (0.1) 117 (4.4)

7 (11.5)

282 (10.7)

52  The cases are gathered from systematic searches of newspaper reports. See “Cases of Police Gun Snatched,” Ming Pao Daily News, March 16, 2001, p. A3. See also “In the Line of Duty,” Hong Kong iMail, March 15, 2001, p. A1. It is supplemented by a computer search of the Hong Kong SAR Government Information database using keywords: “police killed,” “police attacked,” “police shot,” “police revolver.” 53  See Table 1.1, Chapman, Murder on Duty, p. 6. 54  This recalls research problems associated with the prediction of future violence which is notoriously inaccurate. Ralph F. Taylor, Research Methods in Criminal Justice (New York: McGraw-Hill, 1994), p. 68. (Problem with type II error results and ecological fallacy). Ibid., p. 162.

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Ambushing suspects (entrapment and 3 (4.9) 123 (4.7) premeditation) Ambushing suspects (unprovoked 1 (1.6) 106 (4.0) attacks) Dealing with mentally deranged 1 (1.6) 77 (2.9) Traffic pursuits and stops 8 (13.2) 315 (11.9) 61 (100.0) 2,633 (100.0) Total Source: Taken from Table 2.2. Samuel G. Chapman, Murder on Duty: The Killing of Police Officers in America (Springfield, IL: Charles C. Thomas, 1998).

It does appear then, based on this most cursory analysis of US data, that to reduce the chances of police assault and injury, greater attention should be paid to the low-publicity, high-stress police assault and injury incidents, such as responding to disturbance calls (e.g., family quarrels), dealing with crimes in progress (e.g., pursing burglary suspects) or handling the mentally deranged.55 However, the HKP are already very experienced in handling these kinds of incidences, for which back up is routine—and when back up is not possible due to circumstances evolving too quickly, e.g., when chasing robbers, there is very little that can be done now or in the future. VI. The Problems with DB Patrol Some might argue that the unpredictability of risk to police on duty and the uncertainty of effective preventive measures argues for DB patrols. This is based on the theory that more is better, i.e. there is safety in numbers. Intuitively and at a common-sense level, the proposition has validity—DB patrols do seem to impress upon the general public that the “bad guys” should think twice before launching an attack on unsuspecting officers. However, this observation is subject to three exceptions as informed by policing research and literature. First, DB is not necessarily a greater deterrent against well-planned attacks by seasoned professionals working in groups. Nor is it particularly effective against emotionally unstable (e.g., those in a highly charged family dispute),56 desperate (e.g., people being arrested or in the process of escaping),57 or highly motivated assailants (e.g., drug dealers).58 55  Joel Garner and Elizabeth Clemmer, “Danger to Police in Domestic Disturbance: A New Look,” Research in Brief (National Institute of Justice) (1986). 56  “Police Officer Shot Dead During Domestic Disturbance,” APB.News.Com, March 20, 2001, New York. 57  “Screaming Suspect,” APB.News.Com, March 21, 2001, New York. (Officer loses composure as police search his car for drugs.) 58  Amy Worden, “Arizona Cops Shot in Record Numbers: Spike Attributed to More Brazen Suspects,” APB.News.Com, July 27, 1999, New York.

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Second, DB patrols also have three unintended side effects: 1. Officers might become more complacent while on patrol, e.g., talking with partners without paying attention to risks they should otherwise be sensitive to, or relying on each other’s watchfulness when they should be taking more precautions.59 2. Officers might become more confident than justified when entering a situation, e.g., overestimating their ability to control a situation.60 Thus “each gives the other a sense of security far out of proportion to the added protection provided by the second officer.”61 3. Research has consistently shown that the presence of partners affects police–citizen encounters and outcomes, in particularly it can alter the risk of an encounter.62 Some officers, as suggested by social psychology research, will become more assertive and aggressive in the presence of other officers, which in turn might contribute to the aggravation of situational dynamics and inter-personal conflict leading to uncalled for hostility and attack.63 In other circumstances, partners contribute to “sympathetic shooting” prompting officers to shoot even after danger has passed. This has the effect of aggravating or prolonging an armed confrontation, in turn leading to more injury.64 Third, the President’s Commission on Law Enforcement and Administration of Justice (1967) noted that one-officer cars were safer. Another study conducted in 1977 by the Police Foundation of the San Diego Police Department (a nonprofit research group based in Washington DC), which is widely considered the best research on the subject, concluded that although officers showed a slight preference for two-officer cars, one-officer cars better served the community. Oneofficer cars covered more patrol ground and did not appear to be less safe. The study noted that there were fewer reported incidents of resisting arrest with one-

59  O.W. Wilson and Roy C. McLaren, Police Administration, 4th edition (New York: McGraw-Hill, 1977), p. 337. 60  See America Firearms Training and Tactics Course, “Law Enforcement Two Officer Team Tactics,” http://www.aftt.org/specialty.html (Visited March 28, 2012). 61  Wilson and McLaren, Police Administration. 62  Peter Scharf and Arnod Binder, The Badge and the Bullet (New York: Praeger, 1983), pp. 86–9. 63  Richard R. Johnson, “Citizen Complaints: What the Police Should Know,” FBI Law Enforcement Bulletin, 67(12) (1998): 1–5. (“Because of added sense of safety and the extra pair of scanning eyes, more on-site situation involve two-officer units.” This led to more complaints.) 64  Scharf and Binder, The Badge and the Bullet, p. 87.

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officer cars, and that two-officer cars did not reduce the odds that an officer might be assaulted or injured.65 Fourth, historically, except in some big cities—New York and Chicago— development in the US has been from two-officer patrol cars to one-officer police foot patrols.66 Currently, as a matter of policy, one-officer patrols are the norm and two-officer patrols are the exception. The police administrator has to make the decision based on community (dangerous “hot spot”) operational (dangerous assignments) or situational (deteriorating encounters) needs.67 Fifth, the one-officer vs. two-officer patrol debate in the US has been deemed a police administrators’ prerogative, i.e., not amenable to negotiation or arbitration as terms and conditions of employment or staff benefits.68 Sixth, SB deployment has been demonstrated to be the most productive use of limited law enforcement resources in preventing crime, rendering assistance and reducing fear of crime.69 VII. The Benefits of DB Patrol The above section noted that there are a number of (potential) problems with the DB patrol system. However, is there anything to recommend the DB patrol system? DB patrolling has the following to recommend it:

65  John E. Boystum, M.E. Shenny and N.P Moelter, Patrol Staff in San Diego: One or Two Officer (Washington DC: The Police Foundation, 1988). 66  The Clifton Police Department (On Line) Clifton, New Jersey . 67  American Association of Motor Vehicle Administrators recommends that all police jurisdictions should adopt a one-officer patrol policy, (Visited March 22, 2001). 68 See City of Boston v. Police Patrolmen’s Assn., 403 Mass. 680, 532 N.E. 640 (Mass. 1989). (Massachusetts Supreme Court holds that arbitrator could not decide one vs. two-officer patrol car issues; decision was a management prerogative); City of Sault Ste. Marie v. Fraternal Order of Police, 414 N.W. 2d 168 (Mich. App. 1987). (City need not bargain with union on number of officers in a patrol car or minimum number of officers on duty each shift.) Cunningham v. Moore County, 604 S.W. 2d 866 (Tenn. App.). (Sheriff loses case seeking additional deputies; state and national manpower studies inadmissible as evidence.) City of New York OCB Panel (1980) (NYC impasse panel upholds solo police cars for sergeants and lieutenants except in high-risk precincts. Sergeants Benevolent Assn. and the City of New York, Case I-145–79). 69  Linda Green and Peter Kolesar, “The Feasibility of One-Officer Patrol in New York,” Management Science, 30(8) (August 1984): 964–92. (Using speed of response to service as an indicator, one-officer patrol is demonstrated to be one of the most productive uses of resources.)

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1. There is clear and convincing evidence (from data compiled by the FBI—see Table 4.4) that SB officers sustained more injury when on duty, including death, i.e., greater number of injuries per incident. This set of data is subject to the following caveat. Firstly, in as much as there are more one-officer than two-officer cars on patrol, the absolute number of officers killed in the line of duty in one-officer cars may just “appear” to be more than two-officer cars. Secondly, on the other hand, it can be argued that in as much as two-officer cars are dispatched to and otherwise involved in more dangerous assignments, the rate of officers being killed does not do justice to the actual risk they are exposed to. Lastly, notwithstanding the absolute higher rate of killing with one-officer car patrols, research has also shown (though not conclusively) that some injuries to officers on patrol, be it in one-officer or two-officer cars is avoidable, e.g., if they failed to call for backup in the face of apparently dangerous situations. In essence, it is not one-officer vs. two officer cars that is the problem, it is the lack of due care of the officers involved that causes injuries and killing. All this is to say, making sense of one-officer vs. two-officer car assault and injury data is neither simple nor straightforward. Table 4.4

Law Enforcement Officers Killed: By Circumstances at Scene of Incident: 1986–1995

Circumstance at Total Two-officer One-officer One-officer scene of incident car car car – assisted Total 706 84 219 121 Disturbance calls 114 26 35 37 Arrest situations 261 23 40 46 Civil disorders 0 0 0 0 Handling prisoners 35 4 9 2 Investigating 122 15 52 18 suspicious circumstances Ambush 71 5 16 3 Dealing with mentally 14 3 4 4 deranged Traffic pursuits/stops 89 8 63 10 Source: US Department of Justice, F.B.I., “Law Enforcement Officers Killed and Assaulted, 1995,” F.B.I. Uniform Crime Reports (Washington, DC: USGPO, 1997), p. 30.

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2. In the study of crime, researchers have discovered that it is the fear of crime not the crime itself that is of concern to the (potential) victims.70 This line of research informs that it is the symbolic presence of police, not the actual effectiveness of police patrol (in preventing and detecting crime) which influences people’s attitudes toward crime and the police. Should that be the case, the critical question to be asked in this debate centers on the symbolic significance and not the actual effectiveness of DB vs. SB in reducing crime and promoting safety. For example, DB might be viewed by the public as a commitment by the HKP to provide for public safety at all costs and thereby help reduce the public’s fear of crime. Alternatively, SB might mean a faster response to calls for services and a greater virtual presence of police on the road. In this way, an SB strategy may be translated into greater public confidence in police ability to fight crime. It is argued here that the decision on whether SB or DB patrols should be adopted should start with some clear understanding of how the HK public, or special segment thereof, perceive and experience DB vs. SB patrols in their own community and daily life. More importantly, what do the people want from the police and expect them to do? 3. Extrapolating from the fear of crime research, the police as “victims” of crime (potential attacks) display the same kind of “fear of crime” syndrome quite independent of the chance of being attacked in a DB or SB patrol system. In essence, police work is stressful because of the possibility of attack as imagined, not the actual probability of attack as informed.71 If that is the case, the relevant scientific question is whether DB can substantially reduce the “fear of attack” on police independent of its actual deterrent effect. 4. In law enforcement, the symbolic message projected by DB vs. SB should not be underestimated.72 This may well be influenced by the presence of two officers on the scene. With this realization, the policy debate moves onto 70  Mary Dale Craig, Fear of Crime among the Elderly: A Multi-Method Study of the Small Town Experience (New York: Garland, 2000). See also George L. Kelling and James Q. Wilson, “Broken Window,” Atlantic Monthly, March 1982. See a later elaboration of the theory in James Q. Wilson and George L. Kelling, “Making Neighborhoods Safe,” Atlantic Monthly, February 1989. George L. Kelling and Catherine M. Coles, Fixing Broken Windows: Restoring Order and Reducing Crime in Our Communities (New York: The Free Press, 1996). 71  The “possibility” vs. “probability” analysis of risk of attack on HKP officers should not be confused with “vulnerability” vs. “risk” of attack analysis, as a policy tool. In making risk assessment, the assessor has a tendency to look at internal and subjective “vulnerability” (how exposed am I when attacked) and not external and objective “risk” (how likely an undesirable event is going to happen). 72  Anthony J. Pinizzotto and Edward F. Davis, “Offenders’ Perception Shorthand: What Messages are Law Enforcement Officers Sending to Offenders?” FBI Law Enforcement Bulletin, June 1999.

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a different plane: should public agencies, including the HKP, be engaged in the image promotion business, beyond being cognizant of the symbolic significance of any policy and practice?73 If the answer is yes, how far is the HKP allowed to promote an image of safety to the exclusion or at the expense of what the HKP can or cannot do in providing safety and security to the public and to its officers? 5. One of the strongest arguments against the DB beat is that of costeffectiveness. SB in most circumstances functions as well as DB, e.g., on routine patrol or in handling most non-violent situations. The question to ask is whether SB is more cost-effective than DB. The comparison is based on one basic proposition—SB is comparable to DB as a police service delivery mechanism. This supposition fails to understand how police work works and what police service means. Take the two most frequent police tasks: ID checks and family disturbance calls. In the case of an ID check, the single PC on the beat may be tempted not to confront groups of two people or more if he is unsure of his own security, i.e., being properly backed-up. On the other hand, DB patrols intervene in some of the more dangerous situations. In the case of family dispute calls, two persons can take care of the situation better because they can talk the situation down by isolating each member of the couple. In essence, there are things that two people can do that one person cannot. The argument here is that DB patrolling is qualitatively different in maintaining public order and providing a service. In this case comparing SB and DB is like comparing apples and oranges; they are not comparable; certainly not in a single dimension—officers’ safety—or even two dimensions—together with public order. The public’s perception of safety, their fear of crime and their satisfaction with police services are all matters of concern for a policy maker. 6. A major concern these days is complaints against the police, e.g., as promoted by the rise of rights consciousness.74 As a result, the police are exposed to all kinds of complaints, real and fabricated. If there is no colleague to back up an officer, he will be subject to unfound complaints more so than if he is working in a DB. In other circumstances, when police are working one on one with the complainant, there is no other person to bear witness to what actually transpires.75

73  The debate was anticipated by the father of the FBI, J. Edgar Hoover, who was one of the very first police executives to use the media to build an FBI image larger than itself. 74  Kam C. Wong, “Policing Hong Kong Police” (2000) (on file with the author). 75  This is subject to the challenge that there is a “blue code of silence” culture in which police officers never volunteer to testify against each other, or if they have to testify, they testify untruthfully.

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VIII. Conclusion: How Best to Protect Our Police Officers and Safeguard the Public? How should we strive to protect our officers from the risk of attack and the possibility of sustaining injury in the line of duty without compromising the public’s safety and order? Thus far the focus has been on how to reduce the potential risk of attack and injury to officers by providing more staff support; thus the debate over DB or SB patrol. The conclusion here is that this line of thinking is not a particularly fruitfully one. First, it has been observed that assaults on police officers leading to serious injuries are rare and unpredictable events. This supports the argument against deploying DB 24 hours a day on flexible deployment of resources grounds. Second, there is insufficient evidence to show the relative effectiveness of DB over SB in preventing unpredictable or uncontrollable assaults on police, e.g., cold-blooded ambush and heated or emotional confrontation. The evidence is at best inconclusive. If DB is not the answer, what should we do next? The remainder of this chapter argues that if we are truly interested in reducing the risk to officers we should be focusing on how to make unpredictable risk more predictable (more research on patterns, more information given to street officers, more diagnostic training for officers), and also make what is predictable less unpredictable (better control of situations, more survival skills). Chapman laid the necessary groundwork for this line of analysis: What is striking about the deaths of the 30 lone victims, as well as the 31 others who were in the presence of other officers, is that many of the murders were preventable. It appears that a lack of training, a moment of carelessness, overreliance on other officers, a guess which proved wrong about how other officers were going to behave, and an underestimation of apparent circumstances contributed to several deaths. The failure to comply with some standard communication or field tactical procedure was central to the deaths of several officers. These lapses characterized not just a few men working singly, but were apparent in cases where several personnel were present. The issue then, is NOT purely one-vs.-two officer motor patrols. It is far broader, and must include a candid evaluation of officers’ carelessness as a factor which contributed to murder.76

In light of Chapman’s insight, the following immediate remedial steps should be considered to reduce the vulnerability of officers in the line of duty: 1. The police officer on beat should be better informed about the relative dangers involved in various types of situation, assignment and people they are likely to encounter. 76 Chapman, Murder on Duty, pp. 37–8.

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What types of assignment present the greatest risk? What types of opponents are most dangerous? What types of training are most appropriate in responding to / dealing with certain assignments? Is it possible to develop special training to avert certain dangerous situations? Are there interaction patters and interpersonal dynamics among different types of assignments that make a particular type of assignment more or less dangerous? 2. The police officers should be trained to be sensitive to personal and environmental cues of attack so that they can take precautionary steps to avoid getting injured.77 As a first step, this requires the gathering of more relevant information from police informants and complainants to be passed on to the beat officers. Police officers should know what to expect when they come into a potentially dangerous encounter with the public. Researches have shown that police conduct and resulting injury in critical incidences is dependent on the kind, nature and accuracy of information possessed by the officer at the point of entry.78 3. The HKP should also compile reliable and valid statistics as to when, how and why attacks on police happen, e.g., most attacks happen on Fridays and in late evenings with drunks, such that the beat police officers can request that the police executive provide them with necessary support, including double back-up support, if deemed warranted. For example, DB should be the norm in dangerous or remote areas.79 4. The police officer can be better trained and educated as to how to be sensitive to and react appropriately to inherently risky and potentially dangerous situations or people. In light of what little we know about the cause, prevention and deterrence of violence against the police (the supply side to the policing risk), the most productive use of limited police resources for an assured result is to improve upon the performance, especially sensitivity ability and survival skills, of the police in the street (demand side to policing risk). This is most important when research shows that most injuries to police are avoidable if police officers involved pay more attention and take the necessary degree of care.80 77  Scharf and Binder, The Badge and the Bullet. 78  Research has repeatedly shown that front-line police officers’ decisions and action are based on information in their possession. 79  See Chapman, Murder on Duty, “Part II: The Incident, Actors and Disposition,” pp. 15–72. 80  See Chapman, Murder on Duty, “Chapter 5: What Officers Need to Know: Improving Police Training,” pp. 77–102. Management of Aggressive Behavior, VHS – LE 95163V, 30 mins, 1994. (The frequency of assaults on police officers continues to rise every year. Roland Ouellette, author of the book of the same name, looks at verbal and non-verbal behavior as it relates to public safety situations. The issues of space, the reactionary zone, gestures and posture, various types of conflict that people go through and a host of other subjects are discussed. This video will help officers recognize, avoid, and/or minimize, the problems in any confrontations.)

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5. The police officers should be provided with prompt and sufficient back up, e.g., within 3 to 5 minutes in most routine interventions and shorter for some, more dangerous assignments. A designated back up (“shadow”) officer can be identified when an initial assignment is made.81 The “shadow” officer can be electronically linked to a voice/video monitor at HQ control in real time and as a police intervention is taking place, such that available back up can be provided immediately, because, for example, the officer on the beat may be too busy to pick up a danger cue or too surprised to be able to do so. 6. As a more radical policy, the HKP should consider having a no side-arms policy for beat officers;82 with the ultimate aim of de-militarizing the HKP in the future.83 Doing away with HKP side-arms will stop assailants from targeting (ambushing) police for their service revolvers and prevent more serious harm to police and others when revolvers are snatched. This suggestion is subject to the following yet to be resolved empirical issues: (a) How might doing away with service revolvers affect the HKP in carrying out their duty, e.g., capturing criminals on the run, securing otherwise (potentially) dangerous criminals after arrest, and deterring would-be criminals from making future attempts at assaulting police?84 (b) How might this arrangement affect police morale, sense of identity and perception of risk? (c) How might this arrangement affect how police carry out their routine duties?85 (d) How might this arrangement affects people’s perception of law and order or their fear of crime?86 81  West Barrett, Training Officer, GA ([email protected]) Comments: “We note that the contact and cover method gives us the tactical as well as psychological edge in most circumstances.” (Visited March 22, 2001). 82  A revolver can be provided to one of the officers on DB or SB patrols on dangerous assignments. Otherwise, an armed panda car can provide necessary cover and support. 83  I am much indebted to Prof. Carol Jones (City University of Hong Kong, Department of Law) who pointed this out to me. (Personal e-mail, March 25, 2001). See also Peter B. Kraska and Victor E. Kappeler, “Militarizing American Police: The Rise and Normalisation of Paramilitary Units,” Social Problems, 44(1) (1997): 1–18. 84  All of the assaults on police are at close range. For protection purposes and in close quarters, it is not necessary to use a gun, mustard gas can be as effective. Otherwise, police can be instructed in karate to a level (black belt) such that they do not have to use a revolver in defending themselves. 85  Egon Bittner, The Functions of Police in Modern Society (Chevy Chase, MD: National Institute of Mental Health, 1970), pp. 36–47. (Everyone expects the police to use force to a solve problem when they call the police.) Without arms (or force), the police, in order to have people comply with their wishes must resort to other power, e.g., reason, charisma and expertise.) Max Weber, Law in Economy and Society (Cambridge, MA: Harvard University Press, 1954), p. 323. 86  In September 1999 I was interviewed by an experienced “police beat” reporter. When I told her that the HKP should be civilized, she said: “I like the police in smart

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7. On a larger scale and in a longer perspective, the demilitarization of the police will have the effect of redefining the role and character of the police from a colonial and para-military police force to a community and civilian one. More importantly, the de-militarizing of the HKP would serve the important symbolic value of redefining the culture of violence in Hong Kong. Henceforth, people—both police and offenders—would learn not to use arms and resort to violence when confronting each other. Currently, violence begets violence. This is the true pitfall behind DB; the endorsement of violence as a means to reduce violence. Whatever actions are available to make police officers feel secure in the line of duty without sacrificing the sense of safety of the public should be taken. The above recommendations could be implemented immediately while further study can be undertaken to decide whether SB or DB patrols should be provided, along the lines suggested in this chapter.

uniform. They make me feel pride in them. I like the police to look strong. They make me feel secure. I do not want to know what they actually do!

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Chapter 5

Policing Computer Crime in Hong Kong1 Introduction The Hong Kong economy is becoming increasingly and irreversibly reliant upon computer mediated communication (CMC) and the Internet. In 2002 “A SelfAssessment of Hong Kong’s Readiness for E-Commerce” (2002) found that the Internet is an integral part of Hong Kong’s business and private life. Hong Kong has an advanced telecommunications infrastructure, characterized by high speed and versatile functionality. PC penetration is growing fast: it grew from 34 percent in 1998 to 50 percent in 2002. In January 2012, it jumped to 86 percent. There are over 190 ISPs offering competitive pricing and cutting edge services. Consumers in Hong Kong are making use of the Internet to send e-mail, surf the cyberspace, carry out research and conduct low value commercial transactions. Hong Kong business executives aggressively use the Internet to promote their ventures. Thirtyfive percent of businesses are using the Internet for their operations, including marketing, customer support, enhancing efficiency and conducting transactions electronically. The Hong Kong government is using the Internet to cut costs and promote efficiency, e.g., electronic tendering and purchasing since April 2000.2 The Internet has also become a catalyst for economic reform, social development and political change.3 The amount of government, business, financial and personal communications and data transmitted by, processed with and stored 1  This chapter is extracted from Kam C. Wong, “The Discovery of Computer Crime in Hong Kong: A Case Study of the Crime Creation Process,” Journal of Information, Law & Technology (JILT), 2005(1), http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2005_1/ wong/#P1349_113174. I thank JILT for permitting its use. 2  See APEC E-Commerce Readiness Assessment Guide, “A Self-Assessment of Hong Kong’s Readiness for E-Commerce” (2002). See also “Report on Internet Use by Hong Kong Industries,” Cyberspace Center, The Hong Kong University of Science and Technology, May 1997, . (The Report describes and discusses the findings of three computer utilization surveys conducted in Hong Kong, namely Hong Kong Software Manufacturers survey, Hong Kong Computer Industry survey and Mini-survey of Hong Kong’s General Industries. The findings show that 97–98 percent of computer industries at that time were connected to the Internet. In general industries, connectivity varied, from a low of 28 percent for the household industry to a high of 71 percent for the electronics industry, with 42 percent for the women’s garments industry and 30 percent for the piecegoods/textiles industry.) 3  For a study of the diffusion of the Internet in China and its determinants, see William Foster, Seymour Goodman and Alex Zixiang, “TAN, The Internet and E-Commerce in

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in computers is voluminous, and increasing at an exponential rate. The import, impact, influence and implications of the Internet in Hong Kong go far beyond what has been contemplated.4 The history and legacy of computing in Hong Kong is still being written.5 Similar to many developed nations,6 the phenomenal growth in the use of computers, CMC and the Internet in Hong Kong has been accompanied by an increase in computer-related crime since the late twentieth century.7 This has led to a call for a critical review of cyberspace governance philosophy, law and practices.8 Greater South China (Taiwan, Hong Kong, Fujian, and Guangdong),” September 28, 1999 . 4  For a discussion of Hong Kong preparedness and potential for e-commerce, see Karin Cheung, Hua Fung The, Erick Tseng and Adelaide Zhang, “The Growth of Asian e-Commerce: Sociopolitical, Economic, and Intellectual Property Trends,” (no source, no date), (Visited March 26, 2012). (Hong Kong IT development suffers as a result of the government’s traditional laissez-faire policy (lack of regulations) and industry’s wait and see (conservative) attitude. IT security is also an impediment to robust IT development, “4.5. The HK Government.” 5  Hong Kong had no National Information Infrastructure Project to speak of before 1995, though the Hong Kong Information Technology Federation and the Hong Kong Generation Chamber of Commerce has called for its establishment. On December 6, 1996, the Legislative Council (Legco) Panel on Information Policy was formed to discuss the issues surrounding “Development of Information Highway and Internet in Hong Kong.” Correspondingly the government established the Information Infrastructure Advisory Group (under the Office of the Telecommunication Technology) (IIAG) on March 21, 1997 to develop the information highway in Hong Kong. The charter of IIAG includes: “To advise on the development and regulation of information technology in Hong Kong.” See Hong Kong Monetary Authority (HKMA), Financial Technology Infrastructure for Hong Kong (Hong Kong: HKSAR, December 1997), pp. 31–2. In mid-1996, Hong Kong Securities and Future Commissions, a Working Group on Automated Trading System was set up to study the development of an automated trading system with the help of the Internet. One major principle of the Group was to study: “The performance of surveillance and regulatory functions, maintenance of security and control procedures and back-up arrangement.” See Hong Kong Securities and Futures Commission (SFC), Report of the Securities and Futures Commission Working Group on Automated Trading Systems (Hong Kong: HKSAR, January 1997), 6.3. 6  “United Nation Manual on the Prevention and Control of Computer Related Crimes,” International Review of Criminal Policy, 43 and 44 (1999) . 7  Mike Carlson, “Firms Plagued by Computer Viruses,” South China Morning Post, December 7, 2000; Chan Vivien Oak Kuen, “Tougher Law for Hacker,” South China Morning Post, February 7, 1998; Jo Bowan, “Security Warnings as Net Crime Soars,” South China Morning Post, February 22, 2001; “Credit Card Worries Curb Web-buying,” South China Morning Post, July 27, 2000. 8  Cook Beryl, “Expert Urges Change to Computer Law,” South China Morning Post, April 24, 1993; Daniel Kwan, “Deputies Seek Safeguard on High-tech Trade,” South China Morning Post, April 3, 1999.

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The study of cyberspace governance in Hong Kong is still at its early stage.9 As yet there are limited scholars or policy makers who have taken the challenge to conduct a comprehensive study on the subject.10 Academic publications on cyberspace governance in Hong Kong are rare.11 This chapter attempts to fill the research gap, albeit in a small way and limited fashion. Specifically, this research investigates the process of computer crime creation in Hong Kong, i.e., the development of computer crime as a cognizable criminal problem in Hong Kong. The chapter is organized as follows. After this brief introduction, the “Statement of Problem” and “What Is Crime Creation?” sections will delineate the scope, state the focus, and define the key concepts of this chapter. This is followed by a brief review of “The Nature, Prevalence and Distribution of Computer Crime” in Hong Kong in order to provide a context for the understanding of this research. The next section, “An Emerging Computer Crime Problem for the Government,” looks at the emerging crime problem from the Hong Kong government perspective in the late 1990s and early 2000s and concludes that there were legitimate causes for concern. “The Discovery of Computer Crime in Hong Kong by the Public” forms the heart of the chapter. It traces the development of computer crime in Hong Kong from 1996 to 2003. Finally, the “Conclusion” summarizes many of the major findings in the chapter as it discusses some of the more important implications of this research. I. Statement of Problem On July 1, 1997 Hong Kong was returned to China. At that point in time, Hong Kong was still operating as a traditional economy. Except in some circles— banking, stock exchange, IT—the information highway had yet to arrive and computer crimes were rarely reported. After 1997, the HKSAR government pledged to develop Hong Kong into a twenty-first-century “cyberport.” Overnight, 9  The first comprehensive study of computer crime and cyberspace governance in Hong Kong was conducted in March 2000 with the launching of the “Information Infrastructure Advisory Committee – Establishment and Work of Inter-departmental Working Group on Computer Related Crime,” IIAC Paper No. 06/2000 Security Bureau. (The paper outlines the background, organization and charter of the Inter-departmental Working Group on Computer Related Crime.) 10  One of the earliest policy studies is Legislative Council Panel on Security Computer-related Crimes, LC Paper No. CB(2)1187/99–00(04), March 2, 2000. . 11  One of the earlier professional papers on computer crime, legislation and control in Hong Kong was compiled by the Senior Assistant Director of Public Prosecution (HKSAR) and relied entirely on newspaper accounts (47 footnote references) to support his assertions in the paper. Richard Grand Turnbull, “Fraud and the New Technology: A Hong Kong Perspective,” paper presented at the 17th LawAsia Biennial Conference, October 4–8, 2001, Christchuch, New Zealand (2001).

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information security emerged as a major concern and computer crime became a huge problem. How and why did the criminalization of computer-related deviance occur? Particularly, what were the forces involved and steps taken in “creating” computer crime? Such research questions become more intriguing, enticing, urgent and necessary when one realizes that imperial China did not recognize intellectual property and contemporary Hong Kong had no respect for copyrights. Moreover, neither had experience with and a conception of computer crime. How computer crime became a cognizable phenomenon in Hong Kong deserves investigation independently as a mean to understand indigenous socio-legal forces and dynamics at work in crime creation, and collaterally as a way to theorize about how new crimes are created in a traditional (Chinese) culture. II. What is Crime Creation? The term “crime creation,” as used in this chapter, implies that the deviant acts constituting computer crimes—hacking, spamming, Internet vices—are not intrinsically wrong12 but positively created by people and parties, with values to promote, interests to defend and statuses to maintain.13 12  Howard Becker, Outsiders: Studies in the Sociology of Deviance (1963) (“[D] eviance is not a quality of the act the person commits …”). The thesis that crime is inherently wrong finds biblical support in “The Theological Theory of Crime,” (Visited March 26, 2012). (According to Apostle Paul’s view, the nature of crime can be gathered from the following premises: (1) The law of God defines crime; (2) Man is capable of crime because of his sinful or “fallen nature” (Adam’s apple); (3) Governments deter criminals and punish crimes in the name of God; (4) Only God can offer the ultimate salvation from sinful transgressions of crime.). Later, science comes to its aid, with the founding father of the positive school of criminology, Cesare Lombroso (1835–1909) arguing for biological determinism, or that criminals are born bad, i.e. being savages or atavistic throwbacks to an earlier, undeveloped stage. Lombroso, L’Uomo delinquente (Criminal Man) (1876). 13  Austin Turk’s conflict theory, see, Austin Turk, Criminality and Legal Order (Chicago, IL: Rand McNally, 1969) (Criminalization as a manifestation of structural conflicts between the powerful and powerless.) There are two renditions of this thesis. The more scientific and neutral version, as proposed by Turk, suggests that conflicts are natural to all humans and inherent to every society. (In this regard Turk’s assumption of human nature and state of nature is more like Hobbes (1588–1679) than Rousseau (1712–78), more Hanfeizi (c. 230 BCE) than Meng Zhu (372–289 BCE).) The more political and radical version, spearheaded by Marx, suggested that conflicts are class based and materialistically structured. Marx’s theory of class domination and exploitation, again, is capable of two interpretations. The positivistic and conspiring version suggests that capitalists, conscious of their self-interests, deliberately set out to consolidate their powers and fortify their control through law, courts and police. The historical and structural version observes that capitalists, with the best of intentions, cannot help but engage in dominating and exploiting conduct, as

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By adopting the term “crime creation” (with reference to the discussion of the cause and cure of computer crime) this research takes issue with and makes problematic the instinctive,14 unreflective15 and uncritical16 approach to the understanding and reception of the idea that: firstly, computer crime is a wrong;17 secondly, the wrong is a crime;18 thirdly, the wrong must be dealt with formally;19 fourthly, the formal sanction should be by law;20 lastly, it should be punished (by criminal sanction not civil compensation or public administration). The idea that crime is “created,” i.e. positively made, and not “natural,” i.e., intrinsically evil,21 received its strongest endorsement from Howard Becker. responding and reacting to forces of historical materialism. This paper subscribes to Turk’s conflict theory, and with it social construction of reality and crime. 14  By being “instinctive,” this author means that our understanding of things or matters is driven by external instinct or stimulus. In more layperson’s terms it is an unprocessed or knee-jerk reaction. “Instinctive” or “instinctual” is akin to, but not identical with “intuition” which is “The act or faculty of knowing or sensing without the use of rational processes; immediate cognition.” D. Perkins, “The Meaning of Intuition as a Natural Language Concept” (April, 2002). (On file with author). While both are automatic (unprocessed) reactions to the understanding of external things, only the former is not based on rationality. “Intuition” suggests embedded meaning that is derived from a larger frame of reference—individual, social or cultural. Finally, “institutive” understanding is often explained with reference to naturalness. Human beings are born to a larger universe of things, and thus are regulated by those embedded “natural” laws that structure and inform the universe. See Laozi, Dao De Jing (The Book of the Way) (Translation and Commentary by Moss Roberts) (Berkeley and Los Angeles, CA: University of California Press, 2001) (Dao De Jing can be translated as “Canonical text (jing) on the Way (Dao) and virtue (de).” All things in the universe are informed by Dao or the way, a transcendental natural principle that works through all things. 15  By being “unreflective” this author means not given to thought or thinking. The American Heritage Dictionary of the English Language, 4th edition (2000). (“Not reflective; unthinking.”) “Unreflective” describes the process of arriving at a conclusion—understanding of things. The American Heritage Dictionary of the English Language, 4th edition (2002). 16  By being “uncritical” this author means: “Not critical; undiscriminating or indulgent.” This is usually reflected in the acceptance of conventional wisdom without further inquiry, questioning or debate, i.e. the consensus model of crime and punishment. 17  Considering something to be “wrong” is the first step to taking action against it. See Donald Black, The Social Structure of Right and Wrong (San Diego, CA: Academic Press, 1993). 18  That is to say it is not a private wrong. It is not a moral, economic, or social wrong requiring adjustment, but a criminal wrong requiring punishment. 19  That is to say not through informal social control, e.g. mediation, reconciliation or compensation. 20  That is, the public wrong should be dealt with by law and not by some other formal mechanism, e.g., licensing, inspection, administration or supervision. 21  Under common law, crimes are now usually classified as mala in se—deemed to be inherently evil—and mala prohibita—considered violations of technical rules, such as traffic violations.

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Building on the work of Cooley22 and Lemert,23 Becker departed from classical theorists who postulated that crime is inherently evil, immoral or bad, and suggested that crime is a result of the social reaction of others. He called this “labeling theory.”24 He specifically states: [Deviance] is created by society … [as] social groups create deviance by making the rules whose infraction constitutes deviance, and by applying those rules to particular people and labeling them as outsiders. … [D]eviance is not a quality of the act the person commits, but rather a consequence of the application by others of rules and sanctions to an “offender.” … [D]eviant behavior is behavior that people so label.25 (Emphasis added)

The people who establish and enforce the rules by which the “deviance” is created and “outsiders” labelled are “moral entrepreneurs”: “Moral entrepreneurs are those who create and enforce rules. The prototype of the rule-creator is the crusading reformer.”26 Moral entrepreneurs go about making and enforcing moral imperatives in order to: (1) defend the legitimacy of their moral position;27 (2) protect the underclass;28 (3) maintain their superior social status and powers in the society;29 (4) perpetrate their rules and consolidate their influence.30 The moral entrepreneurs seek to secure the above by law and with the help of (fellow) professionals.31 Becker’s insight—crime not as “a quality of the act”—was anticipated by legal positivists who insisted that a crime is nothing more than a legal wrong, i.e., an intentional wrongdoing which is prohibited and punished by law,32 and echoed conflict, radical and critical criminologists.33 22  The concept of “looking glass self” argues that one’s self-image and self-feeling is defined by the perception and judgment of others. Charles Cooley, Human Nature and the Social Order (New York: Scribner’s, 1902). 23  The concept of “social constructionism” argues that reality is manufactured by means of shared social meanings gained through our interaction with each other. Edwin Lemert, Social Pathology (New York: McGraw-Hill, 1951). 24  Howard Becker, Outsiders: Studies in the Sociology of Deviance (New York: The Free Press, 1963). 25  Ibid., p. 9. 26  Ibid., “Chapter 8: Moral Entrepreneurs.” 27  Ibid., p. 149. 28  Ibid., p. 148. 29  Ibid., p. 149. 30  Ibid., p. 153. 31  Ibid., p. 153. 32  “Crime is an intentional violation of the Law, committed without defense or excuse and penalized by the state.” Paul W. Tappan, “Who is the Criminal?,” Am. Soc. Rev., 12 (1947): 96, 98–9. 33  Paul Walton and Jock Young, The New Criminology Revisited (New York: St. Martin’s Press, 1998).

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III. Nature, Prevalence and Distribution of Computer Crime This section describes the nature, prevalence and distribution of computer crime in Hong Kong. This brief review of the computer crime situation in Hong Kong provides a necessary context for and supplies helpful insights into understanding how computer crime was created as a conceptual, moral and finally legal classification of human experience. The Emergence of Computer Criminality In 1996, the first year computer crime records were kept, only 21 cases of computer crime were recorded—four of hacking, six of publication of obscene articles, four of criminal damage of data and seven others. This increased to 34 cases in 1998 and 317 in 1999 (238 hacking, 32 publication of obscene articles, four criminal damage of data, 18 internet fraud and 25 others) (Table 5.1). The increase in official computer crime during this time might not have been due to a precipitous rise in computer crime as much as it resulted from a new social awareness and government interest in pursuing computer crime and control.34 Table 5.1

Reported Computer-related Crimes: 1996–1999

Case Type

1996

1997

1998

1999

Hacking

4

7

13

238

Publication of obscene articles

6

6

13

32

Criminal damage of data

4

3

3

4

Internet shopping fraud

0

2

1

18

Others

7

2

4

25

Total

21

20

34

317

Source: Legislative Council Panel on Security, “Computer Related Crime,” LC Paper No. CB2 1187/99–00(04) (March 2, 2000).

The Development Trend in Computer Crime Looking at it as a trend, the report of computer crime statistics from 1996 to 2004 shows a record of continuous growth from 21 cases in 1996 to 588 cases in 2003, an increase of 2,700 percent. The greatest surge was between 1998 and 1999, when the growth rate was 832 percent. In 2001, there was a slight decrease in reported computer crimes to 235 cases (Table 5.2). The drastic jump between 1998 34  Legislative Council Panel on Security, “Computer Related Crime,” LC Paper No. CB2 1187/99–00(04) (March 2, 2000), .

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and 1999 is most probably a result of government efforts in promoting computer crime awareness and a police change in institutional arrangement in enforcement and reporting practices. The slight drop during 2001–2002 might be attributable to the burst of the dot.com bubble and the slow-down in the IT industry during the period. The HKP, however, attributed the decrease in computer crime in Hong Kong to the public’s awareness and self-help in computer security, and the successful efforts of the HKP to detect, arrest, prosecute and convict computer criminals in four major cases. Table 5.2 Computer Crime Total

Reported Computer-related Crimes: 1996–2004 1996

1997

1998

1999

2000

2001

2002

2003

2004 (Jan– June)

21

20

34

317

368

235

272

588

280

Source: Hong Kong Computer Emergency Response Team Coordination Centre (HKCERT)

In addition, the Newspapers Registration Section (NRS)35 received a total of 156 public complaints regarding pornographic material on the Internet between July 2001 and December 2002 (Table 5.3). Distribution of Computer Crime A further analysis of the computer crime statistics reveals that over the reported period (1996–2004), the most prevalent computer crime category is hacking, or “Unauthorized Access to Computer by Telecommunication.” Seventy-five percent of the cases in 1999 and 2000 were “hacking” cases. Hacking grew from four cases in 1996 to 403 in 2003, a jump of 9,975 percent, with the highest jump between 1998 to 1999—from 13 cases to 238 cases or 1,730 percent (Table 5.4). In recent years, the number of hacking cases has dropped while crimes in electronic commerce, such as e-banking theft and e-fraud, have increased. In 2001, 65 cases of electronic deception were recorded, including the use of stolen identity to obtain goods or services via the Internet, such as through e-shopping and e-auctions. There were also eight e-banking theft cases in 2001 involving HK$4.4 million. The HKP is highly concerned with e-banking thefts because they pose a significant threat to Hong Kong as a major international finance center.36

35  Newspaper Registration Section (NRS) is one of the enforcement agencies of the Control of Obscene and Indecent Articles Ordinance (Cap 390). 36  See Hong Kong Police Force, “HKP-Statistics Page: 2001 Crime Situation,” (Visited November 30, 2002).

Nov 01

Dec 01

Jan 02

Feb 02

Mar 02

Apr 02

May 02

Jun 02

Jul 02

Aug 02

Sep 02

Oct 02

5

4

2

3

5

5

3

0

23

23

33

4

2

1

3

Total No. of Public Complaints Regarding Pornographic Material

26

34

43

103

64

72

40

114

41

48

168

74

109

119

389

Total

Oct 01

3

Dec 02

Sep 01

No. of Public Complaints Regarding Pornographic Material on the Internet

Nov 02

Aug 01

Public Complaints Received by Newspapers Registration Section (NRS) Regarding Pornographic Material on the Internet: July 2001–December 2002 Jul 01

Table 5.3

31

6

156

87

3768

614 1623

Source: Newspapers Registration Section (NRS)

Table 5.4

Total Reported Hacking Cases: 1996–2004

Crime

1996

1997

1998

1999

2000

2001

2002

2003

2004 (Jan– June)

1996– 2004

Hacking

4 (19%)

7 (35%)

13 (38%)

238 (75%)

275 (74.7%)

114 (48.5%)

164 (60.3%)

403 (68.5%)

158 (56.4%)

1,376 (64.4%)

21

20

34

317

368

235

272

588

280

2,135

Total

Source: Hong Kong Computer Emergency Response Team Coordination Centre (HKCERT)

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Impact of Computer Crime As to the financial impact of computer crime in Hong Kong, HKP data show a fluctuating trend, from losses of HK$19,186,201 in 2001 (highest) to HK$4,565,284 in 2002 (lowest) to HK$7,643,737 in 2003 (Table 5.5). Table 5.5

Financial Losses Due to Computer Crime in Hong Kong: 2000–200337 Year

Financial Loss (HK$)

2000

N/A

2001

19,186,201

2002

4,565,284

2003

7,643,737

2004 (Jan – July)

6,850,704

Source: Hong Kong Police Force

Breaking down the relationship between computer crime and financial impact further we see that most of the financial losses come from virus attacks. Virus attacks accounted for 73.7 percent of all financial losses in 2002 and 67.1 percent in 2003, for an average of 81.9 percent (HK$4.878/5.957 million) during the reporting period (Table 5.6). Table 5.6

Financial Losses Due to Computer Crime in Hong Kong: 2000– 2003

Type of Computer Attack Hacking Denial of Service Virus

Total Financial Loss (HK$) 2000

2001

2002

2003

116,000

77,500

206,900

286,000

0

0

96,500

32,850

1,259,650

1,446,500

1,352,483

819,550

Theft of Information

0

0

180,000

83,000

Total Financial Loss

1,375,650

1,524,000

1,835,883

1,221,400

2,461

3,888

5,632

3,116

Average Financial Loss per Victimized Company

Source: Hong Kong Computer Emergency Response Team Coordination Centre (HKCERT)

37  Information on Security and Prevention of Computer Related Crime (Hong Kong Government, 2006) .

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A caveat is in order before taking notice of and otherwise acting upon “financing losses” resulting from computer crime. For example there is a great disparity when comparing “financial losses” between HKP data (Table 5.5) and HKCERT data. This is so for three reasons. HKP and HKCERT define an calculate financial losses differently. Both HKP and HKCERT relied on self-reporting of losses rather than independent and scientific study of financial losses. IV. An Emerging Computer Crime Problem for the Government This section documents the first signs of a computer crime problem in Hong Kong, as viewed from the Hong Kong government’s perspective.38 The question to be addressed is: what was the state of computer crime in Hong Kong in the eyes of the government in the late 1990s and early 2000s? Computer Crime is More Serious than Officially Reported In 1998, according to HKP official crime statistics, there were only 34 computerrelated crime incidents in Hong Kong. By 2000, the figure had jumped to 368. The official data hardly tell the whole story. Away from most public eyes and within the ranks of government IT officials, the HKCERT data told of a different and more serious problem; a computer crime wave was approaching. In 2000, there were $116,000-worth of hacking and $1,259,650-worth of virus attacks affecting 4,733 computers and costing $1,375,650 in damages in total (Tables 5.7 and 5.6). The situation appeared to be worsening: the cost of hacking, the most common form of computer attack, increased from $116,000 in 2000 to $286,000 in 2003. The cost of viruses, the most dangerous and damaging form of computer attack, grew from $1,259,650 (2000) to $1,446,500 (2001) before drifting downward to $819,550 (2003) (Table 5.6). Table 5.7

Number of PCs Affected Due to Computer Crimes in Hong Kong: 2000–2003

No. of PCs affected

2000

2001

2002

2003

4,733

5,366

5,460

4,098

Source: Hong Kong Computer Emergency Response Team Coordination Centre (HKCERT)

38  Section “V. The Discovery of Computer Crime in Hong Kong by the Public” in this chapter will document the Hong Kong people’s experience and perspectives on computer crime.

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Privacy: The Public’s Main Concern The Hong Kong Privacy Commissioner’s Office (“the PCO”) conducted annual surveys on the public’s attitude toward privacy issues in Hong Kong. The “Opinion Survey Personal Data (Privacy) Ordinance: Attitudes and Implementation—Key Findings” (PCO Survey (2000)), commissioned by the PCO39 and conducted by the Social Sciences Research Centre of the University of Hong Kong (2002),40 reveals that privacy is considered an important social issue for individuals (7.63 (2000), 7.58 (1999), 7.63 (1998), 7.64 (1997)), ranked just behind air pollution (8.30 (2000), 8.21 (1999)) and unemployment (8.10 (2000), 8.75 (1999), 8.42 (1998), 7.95 (1997)), but ahead of food hygiene (7.37 (2000)), health services (7.26 (2000), 7.43 (1999), 7.48 (1998)), care for the elderly (7.25 (2000)) and sex discrimination (6.79 (2000), 6.68 (1999), 6.83 (1998), 6.44 (1997)).41 Furthermore, privacy on the Internet is becoming of greater concern as more and more people use the Internet for conducting personal and business affairs (26 percent in 1999; 44 percent in 2000). Of the respondents 52 percent were concerned with privacy in purchasing on the Internet (to the degree of 8 out of a 10-point scale), of which 84.3 percent were afraid of “money loss due to interception of credit card” and 72.2 percent were afraid of “misuse of data by a third party” (Table 5.8). Table 5.8

Privacy Concerns Over Purchasing on the Internet

Privacy Concerns

Percentage of Respondents

Money loss due to interception of credit card

84.3

Misuse of data by a third party

72.2

Little knowledge about the background of seller

54.9

Eliciting further marketing activities

39.0

Others

2.9

Source: PCO Survey (2000), “Opinion Survey Personal Data (Privacy) Ordinance: Attitudes and Implementation—Key Findings”

39  The first part of the survey was a telephone survey of around 1,600 members of the community (aged 16 or above) and the second part was a postal survey that involved a self-administered questionnaire of 485 organizations drawn from 23 sectors. Both parts of the survey were conducted between March and May 2000. 40  “Opinion Survey Personal Data (Privacy) Ordinance: Attitudes and Implementation— Key Findings,” www.pco.org.hk/english/publications/files/survey_e2.doc (Visited March 26, 2012). 41  See ibid., “Figure 1: Importance of social policy issues in Hong Kong.”

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Finally, when asked about their attitude toward invasion of privacy at work, respondents were more concerned about telephone eavesdropping than about e-mails on their work station being checked by their employer (8.78 vs. 7.93). E-mail checking was considered slightly less offensive than video monitoring in the work place (7.26 vs. 6.81) (Table 5.9). Table 5.9

Invasion of Privacy at Work

Invasion of privacy

Mean variant of respondents

A supervisor intercepting a telephone conversation with a friend during working hours

8.78

An employer looking at the contents of a worker’s e-mails on a company supplied computer

7.81

A video camera installed in the pantry of your work place

7.28

An employer keeping track of all sites visited when you use your work computer for web-browsing

6.81

A video camera installed at the entrance to your work place

6.2

Source: PCO Survey (2000), “Opinion Survey Personal Data (Privacy) Ordinance: Attitudes and Implementation—Key Findings”

Altogether, the PCO Survey (2000) shows that privacy is a relatively important social issue in Hong Kong, ranked third out of the seven important social issues mentioned. With respect to concerns over privacy on the Internet, 52 percent of Internet users were afraid of loss of privacy when conducting B-to-C transactions on the net, including loss of credit card information (84.3 percent) and misuse of personal data (72.2 percent). Finally, invasion of privacy in the work place due to the monitoring of computer use was considered by the public to be fairly intrusive, second only to employers listening in on telephone calls (8.78 vs. 7.81). People are not Respectful of Intellectual Property Hong Kong people have little respect for intellectual property or the copyrights of others. According to the “Survey on Public Awareness of the Importance of Protecting Intellectual Property Rights 2002” (IPR Study)42 conducted by the 42  “Survey on Public Awareness of the Importance of Protecting Intellectual Property Rights 2002,” Hong Kong Institute of Asia-Pacific Studies, The Chinese University of Hong Kong (TEL/21/08/2002/Ref.390). Commissioned by the Intellectual Property Department, HKSAR (IPR Study). The survey is an annual survey conducted since 1999. The survey has three objectives: (1) examine public awareness of intellectual property rights; (2) compare results of all years; and (3) ascertain effectiveness of the Intellectual Property Department publicity campaign. The survey was conducted August 21–26, 2002 by phone interview with

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Chinese University of Hong Kong (TEL/21/08/2002/ Ref.390), on behalf of the HK Intellectual Property Department,43 Hong Kong people have a habit of purchasing pirated or counterfeit products (Table 5.10).44 In 1999, most respondents (59.3 percent) admitted to having violated IP rights (IPR) by purchasing pirated or counterfeit products. It appears that the male, young and educated were the biggest offenders, with youths dominating. That pattern persisted, albeit at a lower level, in 2002, when 49.1 percent of respondents admitted to having made illegal purchases of such goods (Table 5.10). This is telling in three respects: First, on the eve of the campaign promoting IT security, most people in Hong Kong had a very cavalier attitude toward IPR. Second, this complacency toward IPR was more prevalent among those with a university education. This survey finding suggests that this problem with a lack of respect for copyright is not necessarily due to a lack of knowledge or education. Third, the situation did not change much in four years (1999–2002). If self-reported IPR breach is high, we can expect the reporting of others (friends or colleagues) to be higher. The concern with loss of face and exposure to liability should reduce full disclosure and honest admission. Turning to respondents’ friends and colleagues we find that the percentage of those believed to have committed illegal purchases in 2001 was 67.0. This should come close to actual levels of violation, except 27.6 percent of respondents claimed they didn’t know if friends and colleagues had purchased or used pirated or counterfeit products. If some of these unknowns are taken into account, the figure for illegal counterfeit purchases might be as high as 70 or 80 percent or more. 2,000 people, aged 15 and over. The response rate is 50.2 percent or with 1,006 successfully interviewed. The sampling error is plus and minus 3.04 percent at 95 percent confidence level. http://unpan1.un.org/intradoc/groups/public/documents/APCITY/UNPAN010253. pdf (Visited March 26, 2012). 43  While this IPR Study does not directly address Internet IPR issues (except tangentially in Table 6: “Judgment on Six Situations of Infringement of IP Rights (%)” when respondents were asked whether “copying a licensed software from office to home” is or is not considered infringement of IP rights (IPR Study, p. 7)), the findings can be validly used as a proxy indicator of Hong Kong people’s attitude and behavior toward Internet based IP rights. There is no reason to believe that people’s attitude toward IP rights abuse would change if they were dealing with computer related issues. If anything, people’s attitude and conduct toward Internet IP rights are likely to be more permissive, indulging and abusive. 44  The IPR Study reported results on both purchasing and using. Only purchasing survey results are reported and analyzed here for two reasons. The survey results—in percentage points and pattern—between purchasing and using is almost identical, e.g. in cases of purchasing and using by family members, the data show: Purchasing – Often vs, None 1.8, 42.2 (2002), 2.2, 39.0 (2001), 2.8, 36.4 (2000) vs. Use – 2.3, 40.0 (2002), 3.6, ,35.5 (2001), 3/8, 31.9 (2000). Second, purchasing is far more reflective of respondents’ attitude toward IPR than just using. Purchasing requires respondents to invest time, money and exposure in violating IPR.

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Table 5.10

179

Practice of Purchasing (and Using) Pirated or Counterfeit Products (percent)45

Respondents Purchasing

2002

2001

2000

1999

None

49.1

46.1

36.5

36.8

Seldom

30.9

32.8

35.9

34.6

Sometimes

17.0

19.0

23.3

21.4

Often

1.2

1.7

2.7

3.3

1.8

0.5

1.6

3.9

Valid Cases

Don’t Know/ Forgot

1,006

1,018

1,004

1,004

Family Members Purchasing

2002

2001

2000

1999

None

42.2

39.0

36.4

32.9

Seldom

31.1

32.1

31.0

28.2

Sometimes

15.3

17.6

21.4

24.1

Often

1.8

2.2

2.8

3.1

Don’t Know/ Forgot

9.6

9.2

8.3

11.6

Valid Cases

1,003

1,018

1,005

1,005

Friends or Colleagues Purchasing

2002

2001

2000

1999

None

5.1

5.5

5.3

4.4

Seldom

13.1

15.4

13.2

9.9

Sometimes

31.0

30.7

34.1

38.7

Often

17.2

20.9

20.7

19.3

Don’t Know/ Forgot

33.6

27.6

26.6

27.6

Valid Cases

1,004

1,018

1,005

1,007

Source: IPR Study (2002)

Next, we look at the reasons why people engage in the purchase of pirated and counterfeit goods in search of a better understanding of how Hong Kong people are disposed toward rights in general and intellectual rights in particular. Here there is much cause for alarm. The top three reasons for infringing IPR are (Table 5.11): 1. price differential between counterfeit and original 2. excessive profits of businessmen 3. people’s selfish mentality 45  IPR Study (2002), Table 18, pp. 18–19.

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By far the biggest reason, year in year out, for justifying infringement of IPR is the price differential between counterfeit and original IP goods: 33.6% (1999), 42.3% (2000), 45.5% (2001), 44.6% (2002). On an average, the top reason outranked the second by a factor of two or more. Moreover, the gap is widening as more people claimed price differential as the reason for infringement in 2002 (44.6) than in 1999 (33.6) and fewer claimed the excessive profits of businesses in 2002 (16.3) than in 1999 (18.1). Table 5.11

Major Reasons for Infringing IP Rights (percent)—Openended, Multiple Responses46

Reasons

2002

2001

2000

1999

Cheap price of pirated or counterfeit products/Genuine goods being too expensive

44.6

45.5

42.3

33.6

Businessmen reaping excessive profits

16.3

26.0

13.8

18.1

Greediness/ Improper public mentality/Lack of selfdiscipline

11.3

15.8

15.2

7.0

Weak awareness of protection of IP rights/Inadequate education

10.7

9.0

10.8

6.7

Poor economy/Lower living standard

9.5

4.7

4.3

3.8

Inadequate enforcement of laws

9.0

3.5

10.1

9.7

Too much supply/Availability

4.5

1.2

2.6

1.3

Inadequacy of IP laws

3.6

2.8

2.2

2.2

High demand

2.7

0.2

1.8

1.2

Others Total valid cases

5.0

0.9

2.1

0.9

1,005

1,005

999

1,002

The impression one gets from this data set is that instead of blaming themselves for a lapse in judgment and feeling morally guilty, people in Hong Kong chose to blame others for their own indulgence in the use and purchase of illegal counterfeit goods. This is a typical case of “Techniques of Neutralization” at work,47 especially 46  See IPR Study (2002), Table 16, p. 16. 47  Gresham Sykes and David Matza, “Techniques of Neutralization: A Theory of Delinquency,” American Sociological Review, 22 (1957): 664–70; David Matza, Delinquency and Drift (New York: Wiley, 1964) (Gresham and Sykes propose five Techniques of Neutralization: Denial of responsibility (“It wasn’t my fault!”); Denial of

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given the fact that people know that IPR infringement is morally reprehensible (Table 5.12), if not legally wrong (Table 5.13). Thus, in saying either that counterfeit products are too cheap or that genuine goods are too expensive, the respondent is claiming “denial of responsibility,” i.e. “I cannot help myself, market forces made me do it.” And, in saying that “Businessmen reap excessive profits” the IPR violator is claiming “denial of the victim” (“They deserve it”), i.e., “Merchants, in charging unreasonably high prices, are being greedy and acting unconscionably. They are the ones to be blamed.” In both instances, the respondent fails to reflect upon his/her own problem and take responsibility, making him/her an amoral, if not even an anti-social person. Table 5.12 “It is Immoral for a Consumer to Buy Counterfeit or Pirated Goods Knowing that it is an Infringement” (percent) 2002

2001

2000

1999

Completely disagree

1.1

0.9

1.6

2.1

Disagree

22.0

23.1

29.5

28.4

Agree

60.4

61.1

49.5

50.1

Completely agree

7.4

7.1

10.3

6.3

Don’t know/Hard to tell Valid cases

Table 5.13

9.1

7.7

9.2

13.1

1,006

1,018

1,007

1,007

Knowledge of IP Rights—Open-ended (percent)48

Knowledge of Rights

2002

2001

2000

1999

Copyright/Copyright privacy

41.3

41.3

32.8

31.1

Don’t know/Hard to say

28.0

32.1

35.7

39.6

Total valid cases

1,006

1,018

1,007

1,009

injury (“I am hurting no one”); Denial of the victim (“They deserve it”); Condemnation of the condemners (“They probably did worse things in their day!”); Appeal to higher loyalties (“I need to rob the rich to save the poor?!”).) 48  Hong Kong people’s overall knowledge of intellectual property rights (IPR), while improving, is still low (Table 5.13). Thus, in 2002 over a quarter of the people (28.0) did not know what IPR was and only slightly over 40 percent was able to correctly associate IPR with copyrights/copy piracy. The types of people who were better able to understand IPR were: sex (male – 79.8 percent), age (below 30 – 77.2 percent), educated (tertiary education – 92.2 percent) and income (HK$20,000 – 91.3).

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All told, the IPR study shows that the people of Hong Kong do not respect IPR. They will purchase illegal counterfeit goods knowing that it is morally wrong and legally impermissible, and instead blame the pricing structure or sellers’ greed for their own wrongful conduct.49 This immoral attitude within a broader amoral culture is aptly described by showbiz celebrity Michael Hui: If people were seen spitting on the ground, they might try to clean the spit secretly with the sole of their shoes; if people went to buy pornographic magazines, they would do it secretly and wrap the magazines with newspapers to avoid being seen by others; but those people who purchase pirated CDs will not feel ashamed, they patronize stores selling pirated CDs like going to carnivals ….50

This spells trouble for Hong Kong’s future development as a vibrant cyberport and prosperous digital financial center, as one Hong Kong Legco member remarked: The future development of Hong Kong is oriented towards high technology. To establish a technology and knowledge-based economy, the protection for intellectual property rights is of utmost importance. … Otherwise, not only the innovative products and the hard work of their designers will be at risk due to the lack of protection for intellectual property rights, the position of Hong Kong as a commercial and financial centre will also be at stake. In that case, I am afraid the general public will become the ultimate victims eventually.51

IT Professionals Concerned about IT Security In 1999, Dr Louis C.K. Ma, Vice-President, Hong Kong Computer Society, conducted a survey52 of Information Systems managers or Chief Information 49  W.R. Swinyard, H. Rinne and A.K. Kau, “The Morality of Software Piracy: A Cross-cultural Analysis,” Journal of Business Ethics, 9(8) (1990): 655–64. 50  Hong Kong, Legco Official Record of Proceedings, Wednesday, December 16, 1998, Legco member Dr Tang Siu-Tong floor speech, . 51 Ibid. 52  Ma sent 200 questionnaires to Hong Kong IT Management Club members in the last quarter of 1998 and the first quarter of 1999. Most of them were CIOs or IS managers in medium/large organizations in the Hong Kong Special Administrative Region (HKSAR) of China. The questionnaire asked the respondents to rate the importance of 24 IS management issues in the current year (1998/1999) and five years ahead (2003/2004) based on a 10-point scale with 1 being least important and 10 being most important. Twenty-eight questionnaires were returned (a response rate of 14 percent). The results were compared with findings from J.M. Burn, K.B.C. Saxena, L.C.K. Ma and H.K. Cheung, “Critical Issues of IS Management in Hong Kong: A Cultural Comparison,” Journal of Global Information Management, Fall (1993): 28–37 (data gathered in 1990) and T.T. Moore, “Key Issues in the Management

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Officers53 about the importance of various information management issues. From Ma’s survey (1999, 2004 (projected)) and comparison (prior surveys 1990, 1994) it is evident that IS managers rated “Improving Information Security and Control” as a very important issue in repeated surveys: ranked nine in 1994, 13 in 1999 and five in 2004 (projected). While security concerns lagged behind “Improving the Effectiveness of Software Development” in terms of IS management priority (number one in both 1994 and 1995, before dropping to fifth in 2004), its importance is on the rise. This survey’s results, showing the relative lack of importance of security as compared to other issues, have to be read in the context of traditional IS management philosophy and culture. Given limited resources, it is more important to spend money on “Improving the Effectiveness of Software Development” or “Building a Responsive IT Infrastructure” than on “Improving Information Security and Control” for the reason that security and control impede operations and do not contribute to the bottom line (Table 5.14). Table 5.14

Critical Issues for IS Management—an International Comparison Hong Kong

Critical Issues for IS Management Improving the Effectiveness of Software Development

US

1990 1994 1999 2004 1994 6.5 1 1 5 6

Taiwan Australia 1994 8

1996 7

Building a Responsive IT Infrastructure

–

16

2

2.5

1

–

2

Increasing Understanding of IS Role and Contribution

–

13

3

12

13

11

26

Making Effective Use of the Data Resource

5

2

4

2.5

7

5

3

Developing and Implementing an Information Architecture

–

4

5.5

7

4

7

4

Aligning the IS Organization within the Enterprise

3

10

5.5

8

9

4

20

Improving IS Strategic Planning

2

3

7

4

10

2

13

of Information Systems: A Hong Kong Perspective,” Information and Management, 30 (1996): 301–7 (data gathered in 1994). 53  Dr Louis C.K. Ma, Vice-President, Hong Kong Computer Society, “Critical Issues of Information Systems Management in Hong Kong” (2004).

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Policing in Hong Kong

Using IS for Competitive Advantage

6.5

5

8

1

17

1

1

Facilitating and Managing End-User Computing

–

15

9

16

16

16

17

Managing the Existing Portfolio of Legacy Applications

–

14

10

23

15

–

15

Planning and Managing Communication Networks

–

11

11.5

9

5

12

12

Measuring IS Effectiveness and Productivity

–

6

11.5

10

11

13

4

Improving Information Security and Control

–

9

13

5

–

3

11

Facilitating and Managing Business Process Redesign

–

–

14

18

2

–

9

Recruiting and Developing IS Human Resources

1

7

15

20

8

9

27

Establishing Effective Disaster Recovery Capabilities

–

11

16

12

–

–

10

Facilitating Organization Learning

–

8

17

19

14

–

8

Implementing and Managing Collaborative Support System

–

–

18

15

11

–

23

Planning and Integrating Multi-Vendor Open System Technologies

8

20

19

22

18

6

28

Developing and Managing Distributed Systems

–

18

20

21

3

–

20

Facilitating/Managing Decision and Executive Support Systems

–

17

21

11

–

10

4

Developing and Managing Electronic Data Interchange (EDI)

–

–

22

17

19

15

19

Outsourcing Selected Information Services

–

–

23

12

20

–

25

Planning and Using CASE Technology

–

19

24

24

–

17

31

Policing Computer Crime in Hong Kong

185

A Computer Crime Problem in the Making? Judging by the above set of data, and from the perspective of Hong Kong government officials, one would be hard pressed to conclude that there is a computer crime wave, much less a crime crisis in the making. First, the HKP official number of computer crime cases is low, in the hundreds, not thousands. The majority of those are hacking cases. Hacking, while offensive, is considered by most to be a nuisance more than a crime. Second, HKCERT reported that the cases of computer attack damage number in the millions not tens of millions. Many of them are as a result of virus attack, a complex technology intrusion, and on companies, a less threatening white collar crime. Very few resulted in fraud on individuals, a more personal crime. Third, turning to the survey of citizens on privacy, citizens consider privacy to be an important but not the most important social policy issue. It ranks just behind air pollution and unemployment but ahead of food hygiene, health services, care for the elderly and sex discrimination. When asked whether they object to employers prying into their computers (reading e-mails (#2), checking sites visited (#4)) while at work, they find it objectionable, but not as objectionable as some other practices, such as listening in on phone conversations (#1) or being videoed at work (#3). Fifth, what citizens are truly concerned about is the loss of privacy when they use the Internet to conduct person-to-business transactions. But such net activities are relatively rare. Hong Kong people do not have a habit of using the Internet to engage in personal B-to-C commercial activities. Finally, if information security managers were asked, the issue of “Improving Information Security and Control” has never been ranked above 5/24 and has even been ranked as low as 13/24. Nonetheless, as intimated before, there are also causes for concern, especially for those who want to see a computer crisis coming. Hong Kong government officials are a conservative lot and a careful bunch. They are given “worst case scenario” bureaucratic training and exposed to a self-promoting organizational culture. For those who wanted to see a computer “crisis” emerging in the early 2000s, it can surely be argued that computer crime has jumped in relative terms, from 26 cases in 1999 to 367 cases in 2000. Or that the number of computers affected, total financial loss or average financial loss per company have all been on the increase.54 More significantly, survey after survey show that the Hong Kong people are not respectful of IPR, and are willing to purchase and use counterfeit 54  However, while the increase is evident, the impact is relatively minor given the total number of computers in service and the size of the economy. More significant to observe, no sooner had the computer crime wave started, than it showed signs of abating, e.g. total number of computers attacked dropped from 5,460 in 2002 to 4,098 in 2003, while the total financial loss to companies dropped from HK$1,835,883 (2002) to HK$1,221,400 (2003) and the loss per company from HK$5,632 to HK$3,116.

186

Policing in Hong Kong

goods notwithstanding moral condemnation or legal prohibition. This is an obstacle to Hong Kong being developed into a twenty-first-century digital world city. V. The Discovery of Computer Crime in Hong Kong by the Public Cyber risk is a psychology phenomenon. Computer crimes are an intangible entity. Electronic privacy is a moral concept. None of them are real or material. That is to say, they have to gain public awareness—cognitive recognition and emotional resonance—before they become real and of consequence to people. Historically and culturally,55 China has no conception of intellectual rights.56 As far as history is concerned, the past holds the key to the future, and in China’s past the leaders in the philosophy of governance were the emperors Yao and Shun and perfect statehood was found in the Zhou Dynasty.57 As for culture, the writings of the sages contain the secrets of Chinese civilization and generations of students were taught to recite the classical literature of old.58 Scores of intellectuals were expected to regurgitate these writings of the past; all officials were required to be conversant with and to justify their action by historical materials, classical literature and the sayings of sages. Not only is it not a crime to quote classical texts without crediting the authors, it is considered a sign of intellectual prowess to be able to recite at will passage after passage, sometimes verbatim, of learned treatises. It is

55  The proposition that culture informs, shapes and dictates individual choice is no longer in doubt. Bryan W. Husted, “The Impact of Individualism and Collectivism on Ethical Decision by Individuals in Organizations,” Instituto Tecnológico y de Estudios Superiores de Monterrey and Instituto de Empresa, (Visited February 26, 2005). See also, P. Christie, Joseph Maria, Ik-Whan G. Kwon, Philipp A. Stoeberl and Raymond Baumhart, “A Cross-Cultural Comparison of Ethical Attitudes of Business Managers: India, Korea and the United States,” Journal of Business Ethics, 46(3) (2000): 263–87. This is more so in a monolithic culture and collective society like China past, where diversity is equated to deviance and individuality is looked upon as dissent. 56  Peter Yu, “The Second Coming of Intellectual Property Rights in China,” Occasional Papers in Intellectual Property, Benjamin N. Cardozo School of Law, Yeshiva University, No. 11, p. 4. (Imperial China has no notion of property rights.) 57  James Legge, The Chinese Classics (repr. Hong Kong: Hong Kong University Press, 1960), vol. III, “The Canon of Shun,” p. 15. 58  Confucian learning was canonized during the Eastern Han Dynasty. The Emperor decreed the Five Confucian Classics to be the standard texts for education: Book of Poetry, Book of Documents, Spring and Autumn Annals according to Mr Tso (Zuo), Book of Zhou Rites and Book of Changes. The Five Classics provided external standards and internal bearings for self-cultivation and government rule.

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187

not, therefore, deemed an infringement of one’s property right but rather judged deference to ones knowledge to be cited, with or without attribution.59 Hong Kong people are a pragmatic lot. They are known for seeking fast money rather than following established principles. Thus, instead of honoring the rights of others and respecting the rule of law, they endeavor to work around rules and find short cuts.60 To them anything and everything in life is a “game” to be won at all costs.61 Given this understanding of China’s historical approach to intellectual property and contemporary Hong Kong people’s mindset toward copyrights, it should come as no surprise that in Hong Kong people do not take intellectual property rights seriously, nor understand computer crime completely.62 In this regard it is taking time to re-educate the people of Hong Kong. 59  Yu, “The Second Coming of Intellectual Property Rights in China,” Sect II: “Causes of Privacy and Counterfeiting Problems in China,” pp. 16–18. (Unlike the West, imperial China did not consider copying the words and work of others to be morally reprehensible, socially inappropriate or legally wrong. It was considered “a noble” thing to do.) See also William P. Alford, To Steal a Book Is an Elegant Offense: Intellectual Property Law in Chinese Civilization (Stanford, CA: Stanford University Press, 1995). 60  Fung Chi Pang, Singing against Hong Kong People (Hong Kong: Speedy Rainbow, 1998) (The four defining personality traits of Hong Kong people are opportunism (zhisheng), use of the brain (silao), struggle with everything (bosha) and to go all out (fen shen). Hong Kong people are pragmatists and utilitarians, more Machiavelli than Kant.) The personality of the people of Hong Kong was shaped by its unique history. Most of the people in Hong Kong came as “political” migrants escaping Communist China and trying to make a living on a barren rock ruled by the British as a colony. The Hong Kong people’s survival instincts make them impatient with rules and contemptuous of rights; pragmatism is the only ideology. Richard Hughes, Borrowed Place Borrowed Time (London: Andre Deutsch, 1968). 61  For a more detailed analysis of Hong Kong people’s social psychology, or as the author puts it, the games Hong Kong people play, see George Adams, “Games Hong Kong People Play: A Social Psychology of the Hong Kong Chinese” (1991), . 62  “Hong Kong a World Leader in Illegal Downloading,” Hong Kong, AFP, January 15, 2004 at 11:07 a.m., . (According to TNS market survey (500 computer users), Hong Kong music fans lead the world in illegal downloading of music files from the Internet: 48 percent surveyed had illegally downloaded once, 81 percent in the 15–24 age group, 25 percent downloaded more than 250 songs. More than a billion Hong Kong dollars (130 million US) of songs; at least 130 million songs in the one and a half years.) See “Major New Study Finds 52 Percent of Software in Use in Hong Kong is Pirated: Over US$101 Million in Losses Last Year,” Business Software Alliance (BSA), July 7, 2004, . (The privacy rates of countries in the region are: China (92 percent), Vietnam (92 percent), Indonesia (88 percent), Pakistan (83 percent), Thailand (80 percent), other Asia-Pacific (76 percent), India (73 percent), Philippines (72 percent), Malaysia (63 percent), Hong Kong (53 percent),

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188

The “discovery” of cyber risk, computer crime and electronic privacy resulted from the convergence of a number of factors, including post-1997 privacy concerns, government IT security concerns, private e-banking security considerations, foreign anti-privacy and anti-counterfeiting campaigns, domestic moral outrage at off-shore Internet gambling, and public awareness of sensational computer crime news.63 Post-1997 Privacy Concerns One of the major driving forces behind making the Internet safe and securing computers from unauthorized access and intentional information theft comes from a most unexpected quarter, pre- and post-1997 politics. One of the major issues in the run up to the 1997 transfer of sovereignty of Hong Kong, from the British government to the PRC, was that of human rights protection, including the matter of privacy. In 1984 the Joint Declaration paved the way for the return of Hong Kong to China on July 1, 1997.64 The Joint Declaration provided that the rights and freedoms enjoyed by the Hong Kong people will last for 50 years, to be secured by a Basic Law.65 Specifically, Article 3(5) of the Declaration provides: (5) The current social and economic systems in Hong Kong will remain unchanged, and so will the life-style. Rights and freedoms, including those of the person, of speech, of the press, of assembly, of association, of travel, of movement, of correspondence, of strike, of choice of occupation, of academic research and of religious belief will be ensured by law in the Hong Kong Special Administrative Region. Private property, ownership of enterprises, legitimate right of inheritance and foreign investment will be protected by law.

As a result, the Basic Laws of Hong Kong (1997)66 specially provide for the guarantee of basic human rights. Specifically, Article 29 provides that the “homes Korea (48 percent), Taiwan (43 percent), Singapore (43 percent), Australia (31 percent), Japan (29 percent) and New Zealand (23 percent) (BSA study, July 2004, esp. p. 7).) 63  “Statement Concerning Police Action on Internet Providers,” March 4, 1995 . 64  Sino-British Joint Declaration of December 19, 1984. (An Agreement between the Government of the UK of Great Britain and Northern Ireland and the Government of the People’s Republic of China on the Future of Hong Kong signed on 19 December 1984.) 65  The drafting of Basic Law began in 1985 when the National People’s Congress appointed the Basic Law Drafting Committee, comprising more than 50 mainland and Hong Kong members. 66  Adopted on April 4, 1990 by the Seventh National People’s Congress of the People’s Republic of China at its Third Session. See Y. Ghai, Hong Kong’s New Constitutional Order: The Resumption of Chinese Sovereignty and the Basic Law (Hong Kong: Hong Kong University Press, 1997).

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and other premises of Hong Kong residents shall be inviolable. Arbitrary or unlawful search of, or intrusion into, a resident’s home or other premises shall be prohibited.” Article 30 further provides that the … freedom and privacy of communications of Hong Kong residents shall be protected by law. No department or individual may, on any grounds, infringe upon the freedom and privacy of communications of residents except that the relevant authorities may inspect communications in accordance with legal procedures to meet the needs of public security or of investigation into criminal offenses.

Rights under the Joint Declaration (1984) and Basic Law (1997) were not selfexecuting. They needed to be implemented by law, and actualized with executive actions. Responsibility for this fell on the shoulders of Chris Patten, the last (28th) Governor of Hong Kong (1992–97). In this regard, the Governor made clear that: “The British role is to discharge our colonial responsibilities honourably and competently.”67 In practice that meant pursuing a two-pronged strategy: introducing democratic institutions and establishing a human rights regime. The work of the Hong Kong Law Reform Commission on “Reform of the Law Relating to the Protection of Personal Data” (1989–94) (1994 Report) should be understood in this historical and political context. Hong Kong transition of sovereignty began long before 1997 and continued with Chris Patten’s democratization, liberalization and legalization policy. The “Terms of Reference” of the 1994 Report states: “On 11 October 1989 the Attorney General and the Chief Justice referred to the Law Reform Commission for consideration the subject of ‘privacy’.” The Commission’s terms of reference were: To examine existing Hong Kong laws affecting privacy and to report on whether legislative or other measures are required to provide protection against, and to provide remedies in respect of, undue interference with the privacy of the individual with particular reference to the following matters: (a) the acquisition, collection, recording and storage of information and opinions pertaining to individuals by any persons or bodies, including Government departments, public bodies, persons or corporations;

67  Jesse Alan Gordon and Charles Wong, “Hong Kong beyond 1997: An Interview with Governor Chris Patten and three Legco Members,” The Harvard Journal of World Affairs, 3(1) (1994): 117–45.

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Policing in Hong Kong (b) the disclosure or communications of the information or opinions referred to in paragraph (a) to any person or body including any Government department, public body, person or corporation in or out of Hong Kong; (c) intrusion by electronic or other means into private premises; and (d) the interception of communications, whether oral or recorded.

Following on the heels of the 1994 Report, The Law Reform Commission took another look at some of the more salient privacy issues raised by electronic data interception, interference and theft. This resulted in the issuance in December 1996 of the “Report on Privacy: Regulating the Interception of Communications” (1996 Report).68 The 1996 Report observed: The rapid expansion of the Internet, and the resultant increase in the amount of personal information available on-line, has made the public more concerned about the privacy of their communications. Service companies are likely to use privacy as a competitive weapon in winning customers.69

The growth in industries’ use of electronic communications systems had increased the need for security to be applied to those communications in such areas as banking and finance. Service carriers were aware that an inability to safeguard customer information would adversely affect customer relations and their business. Another concern was that of theft of proprietary information.70 More ominously, the 1996 Report warned of the coming privacy crisis. “The development of advanced communications networks is likely to be hindered unless service carriers can assure the public that there is adequate security for their communications.” The President of the United States Telephone Association asserted that: If the public becomes skittish about using the public network for fear either that it is full of “back doors” designed so that the FBI can more easily tap into it, or their local sheriff will be developing a dossier on them based on call set-up information, that fear will translate into reduced use of the system. The result will 68  The terms referred to in the 1996 Report “Terms of References” are anchored within the report “Reform of the Law Relating to the Protection of Personal Data” and state: “The issues raised at items (a) and (b) in the terms of reference were addressed in the Law Reform Commission report on Reform of the Law relating to the Protection of Personal Data published in August 1994. Most of the recommendations of that report were adopted with the enactment of the Personal Data (Privacy) Ordinance (Cap. 486) on 3 August 1995. This report deals mainly with item (d).” See 1996 Report, “Introduction,” paragraph 5. 69  See 1996 Report, “Introduction,” 10(b). 70  See 1996 Report, “Introduction,” 10(c).

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be the loss of billions of dollars in potential revenue, and along with that many of the jobs, the taxes, and the benefits that we anticipate from the information age.71

While the 1996 Report mainly addressed government interception of electronic data and intrusion into the computer domain, the warning applied equally to cyberspace interception and intrusion of all kinds. This detour into the 1997 politics and law of the Hong Kong government and Hong Kong Law Reform Commission on “privacy” (1994 Report, 1996 Report) makes abundantly clear that the “discovery” of computer crime and electronic privacy in Hong Kong was driven by many forces and advanced along a number of paths. In the ultimate analysis, it matters less how computer crime, cyber security and electronic privacy issues were “discovered” as how the Hong Kong government and people finally came to terms with their emergence. The first step to be taken toward solving any problem is for the problem to be recognized cognitively and emotionally. How cyber risk, computer crime and electronic privacy entered the Hong Kong people’s psyche and ethos is, therefore, the focus of this section. We will follow this line of approach in seeking to document how Hong Kong came to “discover” computer crime. Automated Trading and E-Banking Security Studies In the mid-1990s, the Hong Kong government started to worry about e-security issues in conjunction with its desire to develop an information infrastructure to improve government efficiency—i.e., e-government—and business productivity— e.g. automated stock trading and e-banking. This required the government: “To instill confidence in the public … [and] set up proper mechanisms to ensure the security and soundness of transactions made through the open communication networks.”72 Automated trading study In mid-1996, the Securities and Futures Commission (SFC) formed a Working Group to consider the prospects and problems, issues and solutions related to introducing “Automated Trading Systems” (or ATSs). The Working Group produced the “Report of the Securities and Futures Commission Working Group on

71  See 1996 Report, “Introduction,” 10(6). 72  Secretary for Information Technology and Broadcasting Testimony. Legco Proceedings. Wednesday, November 4, 1998 (“Furthermore, we plan to introduce an enabling bill on electronic commerce to the Legislative Council next year. The bill will make specific provisions for digital information, legal endorsement for electronic signatures, the establishment of a certification authority and such like matters.”)

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Automated Trading Systems—Public Consultation” (February 1997) (hereinafter 1997 ATS Study).73 It pointed out: (C)(17) (iii) Security. Security is one of the foremost concerns of investors in deciding whether to go on-line.74 Whilst many sites have been tested and appropriate security systems implemented, hackers and other parties are constantly attempting to break security codes, passwords and other authentication measures to access company and customer information. (C) (17) (iv) Privacy. Privacy issues are also among the primary investor concerns related to on-line trading, particularly in the US and Europe ….75

The SFC is greatly concerned with system and operational integrity and security issues. In particular members of the Working Group and the brokers interviewed by the SFC identified security as an area of deep concern.76 This concern was based on the understanding that, while the dematerialization of trading functions has significantly increased efficiency, the trade-off has been that virtual data is far more susceptible than physical data to unauthorized and malicious destruction. On-line trading has made financial institutions vulnerable in a way that was not possible off-line. Thus, the SFC places a very high priority on security issues, and has declared “The Commission notes that the Hong Kong Monetary Authority on 6 July 2000 issued a Guidance Note on the ‘Management of Security Risks in Electronic Banking Services’.”77 The Hong Kong Monetary Authority (HKMA), 73  “Report of the Securities and Futures Commission Working Group on Automated Trading Systems—Public Consultation” (February 1997), . 74  “A Survey of Online Trading,” SFC Bulletin, 38 (October–December 1999): 12. 75  “Challenges to the Network: Internet for Development” (1999) http://www.itu.int/ ti/publications/INET_99 (Visited March 26, 2012). 76  Issue include: (i) proper segregation of employee duties, (ii) the use of alphanumeric passwords, (iii) a password which must be equal to, or longer than eight characters or digits, (iv) a requirement for clients to change their passwords at regular intervals, that clients have the option to change their passwords at any time, (iv) an automatic timeout feature for site access, (v) using the latest encryption technology to ensure secured communication with clients, (vi) transaction database to be logically separated from web servers, (vii) normally, web servers to reside in the Demilitarized Zone (“DMZ”), (viii) installation of firewalls to shield web servers and internal network from outsiders, (ix) firewalls to have appropriate rules, (x) control and operation of important devices (such as firewall and routers) be divided into two parts resulting in the use of two passwords, (xi) intrusion detection devices be implemented to monitor any unauthorized access, and (xii) ideally, router access controls to be implemented to provide an additional layer of protection. 77  “Management of Security Risks in Electronic Banking Services,” A Hong Kong Monetary Authority Guideline Note, July 6, 2000, . 78  “Independent Assessment of Security Aspects of Transaction E-banking Services,” A Hong Kong Monetary Authority Guidance Note, September 26, 2000, . 79  The study was conducted by the Study Group on Electronic Banking, established by the HKMA in July 1997. “Security of Banking Transactions Over the Internet,” 1997, .

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Government IT Security Concerns In 1999, the Hong Kong government formally launched the Cyberport project to promote Hong Kong’s future economic development. The vision of Cyberport states: The Cyberport aims to provide an important Information Technology (IT) flagship infrastructure to attract, and thus create, a strategic cluster of local and overseas companies and professional talents specialising in Information Technology (IT) applications, information services (IS) and multi-media content creation.80

The success of the Cyberport project ultimately depends on the Hong Kong government’s ability to secure the information highway and keep the IT infrastructure safe from potential cyberbarons and computer criminals.81 As a result, around the late 1990s, there was much discussion in and out of government as to how cyberspace should be regulated and made safe.82 The most prominent, enduring and controversial debate revolved around who would be responsible for cyber security in Hong Kong.83 Unlike in the United States,84 the issue of whether to govern or not to govern the cyberspace was never an issue. From the beginning, the question has always 80  Cyberport Project (Hong Kong Government, 2004) (Visited March 26, 2012). 81  “Development of Information Superhighway and Internet in Hong Kong,” Submission to Legco Panel on Information Policy Meeting on Friday, December 6, 1966, Hong Kong Internet Service Providers Association. (“Security is critical to the development and operation of a vital Information Superhighway.”) 82  Letter: “Consultation Paper on Copyrights Bill, Response of the Hong Kong Internet Service Providers Association,” December 2, 1996. Hong Kong Internet Service Providers Association. (“The ISP being a carrier cannot bear responsibility with respect to copyrights of any material contracted by the Owner to be processed and transmitted by the Internet.”) “Comment on the Review of Electronic Transaction Ordinance,” April 24, 2002. Hong Kong Internet Service Providers Association. (Many small companies cannot protect the integrity of their databases because they have no dedicated server for different IT functions.) . 83  White Paper: “Legislation: One of the Key Pillars in the Fight against Spam,” Developed by the Hong Kong Anti-Spam Coalition, January 2004, . (According to the result of a survey on “Unsolicited e-messages” by Legco councilor (IT), some people are against the government taking an anti-spam role because of concerns over privacy and freedom of speech.) 84  See John Perry Barlow, “A Declaration of the Independence of Cyberspace,” February 8, 1996, . (“Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather. We have no elected government, nor are we likely to have

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been how and how much to regulate the cyberspace.85 In June 2001 the Deputy Secretary for Security, Cheung Siu-hin announced the government’s cyberspace governance philosophy and computer security strategy. As the Secretary put it, the issue at hand is between having an Orwellian Big Brother “watching our every move” or having some basic rules for the information highway. The government’s “approach has been to treat regulation as the means to establish minimum ground rules to secure fair play.”86 The Secretary was quick to add that government regulations cannot be the sole solution to cyberspace security. They are also not the most efficient and effective solution to computer crime and information security problems. The best strategy is to educate the public to secure themselves—e.g., to guard against online identity theft—and to work with the private sector (IPSs) to reduce security risks87—e.g., the adoption of best practice or preservation of

one, so I address you with no greater authority than that with which liberty itself always speaks. I declare the global social space we are building to be naturally independent of the tyrannies you seek to impose on us. You have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear.”) 85  Some scholars argue that there is no such thing as non-regulated cyberspace, i.e. order in cyberspace implies passive coordination if not assertive governance. The debate is not about whether to regulate but with delineating what is the purpose of regulation, i.e. coordination vs. control, determining who is regulating, e.g., cyber users vs. big government vs. powerful corporations, and deciding upon how to regulate, e.g., grassroots regulation or imposed order. David Johnson and David Post, “Law and Borders: The Rise of Law in Cyberspace,” Stanford Law Review 48 (1996): 1367. (Cyberspace has a real boundary and requirements of law. But the legal regime must be adjusted to the characteristics of the cyberspace, not transferred from the conventional material world.) Milton Muller, “The ‘Governance’ Debacle: How the Ideal of Internetworking Got Buried by Politics,” INET (Internet Conferences), 1998. (Visited March 26, 2012). (Regulation of the Internet has shifted from neutral coordination and facilitation to political control and suppression.) 86  The Hong Kong government’s position, though apparently clear, raises more questions than it solves. First, what is “minimum” and what is “maximum” is not ascertainable in the abstract. Second, the question of “minimum” to whom needs to be resolved. Ultimately, the issue of reasonableness of cyberspace regulation cannot be disposed of by simplistic and jargonistic “minimum” and “maximum” rules. The essence of the debate is never how much to rule, a legal question, it is to what ends the regulations should be directed, a philosophical issue. 87  Again, when the Hong Kong government looked toward the public and community to help to secure the cyberspace, it was less a move to promote political accountability but a strategy to enhance efficiency and cost effectiveness.

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computer forensic evidence.88 The approach was to move toward cyberspace community policing.89 The Hong Kong government’s public education effort was instrumental in educating the public in computer crime problems and IT security issues. Foreign Anti-Piracy Campaign90 In the 1990s Hong Kong was the piracy centre of Asia, if not the world.91 A cursory inspection of the British colony (known then as a dependent territory) showed that in 1996, software piracy was a growth business.92 Pirated software could be bought openly, cheaply and safely everywhere,93 for example, at the Golden Shopping Arcade (GSA) and the Computer 33 Plaza in Shumshuipo, at the “Internet Zone” at Whampoa Gardens, and at the Sinoplaza in the Mong Kok section of Kowloon. A 1996 IIPA (International Intellectual Property Alliance) 301 Country Report takes note of the prevalence and seriousness of the problem: CD-ROMs containing pirated computer software, both business applications and entertainment titles, are flooding the market in Hong Kong. Seizures of these pirate CD-ROMs skyrocketed from 5400 in 1994 to 176,872 in the first nine months of 1995, a 44-fold increase on a monthly basis. This contraband often takes the form of compilations, in which the massive storage capabilities 88  “Information Security: Whose Responsibility.” Speech given by Cheung Siuhing, Deputy Secretary for Security, at the Opening Ceremony of the Internet Commerce Exposition and Conference, June 21, 2001. (Hong Kong government acknowledged that regulations cannot be the only answer to information security.) 89  For discussion of the history and philosophy of community policing, as applied to the China context, see Kam C. Wong, “Community Policing in Comparative Context: P.R.C. vs. USA,” November 11, 2001 (on file with author). 90  Gregor Urbas, “Cybercrime Legislation in the Asia Pacific Region,” Cybercrime Summit, Centre for Criminology, University of Hong Kong, April 25–26, 2001. (Over the last two years, Microsoft Corporation has launched campaigns against piracy and the counterfeit of proprietary computer software. It closed down 88,000 Internet sites offering counterfeit software and conducted hundreds of raids on counterfeiting sites in China (including Hong Kong and Macau), Malaysia, Philippines, Singapore, Taiwan and Thailand.) 91  “Piracy in Hong Kong: IGN64 Goes Undercover in Sham Shui Po and Looks at Piracy Devices and their Impact on the N64 Scene,” IGN, April 8, 1999, . 92  For a tourist’s first person account of software piracy, see “Exploring the Internet: Round One, Hong Kong,” . (Visited March 26, 2012) (Microsoft Word for Windows in the US costs US$129, after special discount. In the Golden Shopping Center it fetched US$12.50. AUTOCAD (15 high-density disks) or even a full distribution of SCO’s Open Desktop sold for US$138 and in the US it was priced US$1,000.) 93  “Piracy in Hong Kong: IGN64 Goes Undercover in Sham Shui Po and Looks at Piracy Devices and their Impact on the N64 Scene.”

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of the CD-ROM format are used to package dozens of unrelated computer programs from a variety of sources, with a legitimate market value of tens of thousands of US dollars, for sale in Hong Kong at a minuscule percentage of the legitimate price. For instance, the latest versions of Autodesk’s AutoCAD Release 13 (retail price US$4,250), Novell’s NetWare 4.1 (retail price $2,845) and Lotus’s Smartsuite were packaged with over 100 other programs owned by different companies and sold openly in Hong Kong in October 1995 for HK$50 (US$6.50). Pirated versions of Microsoft’s Windows 95 were on sale at the Golden Shopping Arcade within a week of the operating system’s launch on August 24, 1995.94

Hong Kong retail computer software piracy was also found in the cyberspace. In August 1996, the Business Software Alliance (BSA) working closely with the Alliance Against CD-ROM Theft (AACT) closed down an Internet site called Sammy Game Center, which offered illegal CD-ROM products for sale and export to the United States, the Netherlands, Sweden and Canada, via the net.95 To the (foreign) intellectual property industry, the economic impact of Hong Kong privacy and counterfeiting is great. According to IIPA data, the levels of piracy of computer programs for business application and entertainment software from 1995 to 1998 in Hong Kong were: 1995 (business 62 percent, entertainment 74 percent), 1996 (65 percent, 73 percent), 1997 (67 percent, 70 percent), 1998 (59 percent, 72 percent) (see Table 5.15). Table 5.15 Estimated Trade Losses Due to Piracy and Levels of Piracy in Hong Kong: 1995–1998 (millions of US dollars) Industry

1998 Loss Level 30.0 20% 30.0 60%

1997 Loss Level 20.0 20% 20.0 20%

Motion Pictures Sound Recordings/ Musical Compositions Computer Programs: 69.2 59% 92.9 Business Applications Computer Programs: 112.3 72% 110.9 Entertainment Software Books 2.0 NA 2.0 Totals 243.5 245.8 Source: IIPA Special 301 Recommendations for rbc/1999/rbc_hong_kong_301_99.html.

1996 Loss Level 15.0 15% 18.0 20%

1995 Loss Level 10.0 4% 5.0 13%

67%

89.0

65%

88.7

62%

70%

115.7

73%

112.2

74%

NA

2.0 NA 2.0 NA 239.7 217.9 the year 1999 http://www.iipa.com/

94  Excerpt from the IIPA Special 301 Recommendations on Hong Kong, February 20, 1996 . 95  “Hong Kong,” GrayZone Digest, September 1996 .

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Foreign intellectual property commercial interests—movie, music, theater, software, retailing, broadcasting and information technology industries— including ATV, Blockbuster, BSA, adopted a two-pronged strategy to reduce the flood of pirated software in Hong Kong. First, they conducted an education program and launched an awareness campaign to inform the public as to the magnitude and seriousness of the piracy problem in Hong Kong. Second, they applied political pressure on the Hong Kong government to clamp down on piracy and counterfeiting; demanding greater law enforcement, stricter legislation and heavier punishment. In order to mobilize the Hong Kong public, the foreign and domestic intellectual property coalition staged mass rallies, e.g., an anti-piracy march in Hong Kong on March 17, 1999, to heighten public awareness of the grave consequences and negative impact of piracy in Hong Kong.96 The message was as clear as it was dire: copyright piracy was causing serious losses to the Hong Kong economy and grave harm to Hong Kong’s reputation as an international trading center. Piracy of intellectual property is a crime. The Hong Kong people should not buy pirated goods. The Hong Kong government should take resolute action against counterfeiters and the public was urged to appeal to the Hong Kong government to take such action to fight the crime of piracy.97 Beyond public education and political action, the intellectual property coalition threatened the Hong Kong government with possible USTR (United States Trade 96  “Hong Kong Anti-Piracy March,” GrayZone Quarterly Digest, March 17, 1999, . (The message was that piracy hurts the Hong Kong economy and jobs. People should not buy pirated goods and should report counterfeiters. The Anti-Piracy March was supported by Asia Television Ltd., Blockbuster, Business Software Alliance (BSA), Cable and Satellite Broadcasting Association of Asia (CASBAA), Composers and Authors Society of Hong Kong Ltd. (CASH), Hong Kong Cable Television Ltd., Hong Kong Cinema and Theatrical Enterprises Association, Hong Kong Cinematography and Television Lighting Association, Hong Kong Fine Arts Association, Hong Kong Film Awards Association, Hong Kong Film Directors’ Guild, Hong Kong Internet Service Provider Association, Hong Kong, Kowloon and New Territories Motion Picture Industry Association Ltd. (MPIA), Hong Kong Optical Disc Manufacturers Association (HKODMA), Hong Kong Performance Artists Guild, Hong Kong Record Merchants Association Ltd., Hong Kong Screenwriters’ Guild, Hong Kong Small and Medium Business Association, The Hong Kong Stuntman Association, Hong Kong Theater Association, Hong Kong Video Industry Association, HMV, International Federation of the Phonographic Industry (IFPI), Motion Picture Association (MPA), Motion Picture Production Executive (HK) Association, Movie Producers and Distributors Association of Hong Kong, Movieland, Music Publishers Association of Hong Kong Ltd., Society of Cinematographers (Hong Kong), Society of Film Editors (Hong Kong), Software Publishers Association (SPA), South China Film Industry Workers Union, Television Broadcast Ltd. (TVB). 97  “Hong Kong Anti-Piracy Day a Major Success,” IFPI Press Release, March 17, 1999.

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Representatives) 301 trade sanctions, if it did not take immediate and effective measures to get intellectual property piracy under control. For example in 1995, the IIPA Special 301 recommended placing Hong Kong on “Special Mention” status (equivalent to the USTR’s “Other Observations” category) as a result of the increased flow of pirated materials from China into Hong Kong.98 In 1996 the IIPA recommended placing China on its “Watch List” to encourage Hong Kong to devote more resources to copyright enforcement, and in 1997 the IIPA wanted to place Hong Kong on its “Priority Watch List,” because of the worsening digital piracy problem. Ambassador Barshefsky placed Hong Kong on the “Watch List” on April 30, 1997. In 1998 the USTR agreed with the IIPA’s recommendation to keep Hong Kong on the “Watch List.”99 Through public pressure and trade sanctions, the IIPA was able to compel the Hong Kong government to take resolute action against piracy, including introducing more effective legal measures—e.g., licensing CD copying machines—and taking more aggressive enforcement action—e.g., more raids against pirate organizations, piracy and counterfeiters. On December 16, 1998 Mrs Selina Chow, Legco member for the retail industry, introduced the following motion: That, in view of the recent proliferation of pirated compact discs in various districts, this Council urges the Government to immediately review the existing policies and strengthen the co-ordination of various law enforcement authorities, so as to combat more effectively the manufacture, importation and sale of pirated video, music and software compact discs; furthermore, the Government should strengthen its publicity and education programmes with a view to making the public aware that the infringement of intellectual property rights is immoral; this Council also urges the Government to actively consider amending the relevant legislation in order to empower the law enforcement authorities to prosecute those engaged in the pirated recording of movies in cinemas and consider the imposition of fines on purchasers of pirated compact discs, thereby achieving deterrent effects. 100 98  On January 1, 1996, the World Trade Organization (WTO) Agreement on TradeRelated Aspects of Intellectual Property Rights (TRIPS) went into effect. In general terms, TRIPS requires an enforcement system that: permits effective action against infringements; provides expeditious remedies which constitute a deterrent; is fair and equitable; is not unnecessarily complicated or costly; and does not entail any unreasonable time limits or unwarranted delays. TRIPS requires that member countries must apply their criminal laws in cases of commercial piracy; it is not enough to merely have laws on the books unless those laws are used effectively. Failing that USTR can impose trade sanctions. “Copyright Enforcement Under the TRIPS Agreement,” International Intellectual Property Alliance (IIPA), October 2004, . 99  IIR County Report 2000. 100  Legco proceeding, “Official Record of Proceedings,” Wednesday, December 16, 1998.

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In February 1999, the Hong Kong government published a consultation paper entitled “Combating Intellectual Property Rights Infringement in the Hong Kong Special Administrative Region: Possible Additional Legal Tools.”101 The paper proposed a number of measures to fight piracy and counterfeiting, including piracy and counterfeiting offenses under the Organized and Serious Crimes Ordinance; amending the Copyright Ordinance and the Trade Descriptions Ordinance to provide for the confiscation of criminal proceeds from intellectual property infringement offenses; the introduction of mandatory or standard sentences for copyright and trade mark offenses; closure orders against premises used repeatedly for piracy or counterfeiting activities; banning unauthorized video recording in cinemas; banning video equipment in cinemas; and imposing consumer liability, including imposing a fixed penalty for possession of infringing articles; creating a smuggling offense in respect of the import or export of infringing articles; recasting the offense of possession of infringing articles. As a result of the consultation process, the Legislative Council passed an amendment to the Organized and Serious Crimes Ordinance to include piracy and counterfeiting offenses and on January 12, 2000, it also proposed criminalizing the possession of an infringing article other than for personal, domestic use. On the law enforcement end, the government also took more aggressive action against piracy in 2000 to pacify foreign concerns. For example, on June 22, 2000, the Internet Task Force of Hong Kong Customs conducted the first raid in Hong Kong against an Internet site selling pirated software, where Microsoft Windows 2000, Microsoft Project 2000 and Symantec pcAnywhere were sold at HK$20 per copy. Two suspects were arrested and three computer servers, two computers, 76 pirated discs and other computer equipment worth approximately HK$50,000 were seized.102 The foreign anti-piracy movement had the net effect of educating the Hong Kong public to respect intellectual property rights and moving the Hong Kong government to act in greater consideration of intellectual property rights. In the process, it was successful in making one kind of computer crime, that of stealing intellectual property electronically, tangible and real. Moral Outrage towards and Economic Pressure against Internet Gambling Gambling is a favorite pastime in Hong Kong.103 Take gambling on soccer as an example. The Hong Kong government Home Affairs Bureau survey shows that 101  For a response see “Hong Kong Software Industry Comments on June 1999 Trade and Industry Bureau Submission to the Legislative Council Panel on Trade and Industry,” CB(1)1457/98–99(02) (June 3, 1999). 102  Microsoft Licensing: Hong Kong Copyright Law, “Hong Kong Customs First Crackdown on Online Sale of Pirate Software (L),” June 28, 2000, (Visited August 11, 2004). 103  For a first person account of gambling in Hong Kong see, Michelle Levander, “Log On Your Bets,” Times (Asia), November 5, 2001. (“Living in Hong Kong, it’s hard not

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in May 2001, 2.4 percent or 120,000 people in Hong Kong betted on soccer.104 An independent Chinese University of Hong Kong gambling survey conducted at the same time shows more gamblers—6.2 percent105 or 340,000 people. The conservative estimate was that the annual turnover from gambling on soccer amounted to $200 billion a year.106 With the introduction of off-shore and Internet gambling107 the situation has worsened. The growth of off-shore gambling is further evident in the ten-fold increase in telecommunication volume between gambling Country X (widely suspected to be the UK) and Hong Kong (see Table 5.16) between 1993 and 2000. Table 5.16

Telecommunication to Off-shore Gambling Site (Country X) and Other Countries: 1993, 1994, 2000

Countries

Year

Minutes (000)

All other countries

1993

1,376,858

All other countries

1994

1,578,442

All other countries

2000

3,074,885

Gambling site (country X)

1993

32

Gambling site (country X)

1994

34

Gambling site (country X)

2000

332

Source: Adapted from Table 3.1. Home Affairs Bureau, Public Consultation on Gambling Review: Consultation Report (HKSAR March 22, 2002), “Chapter 3: The Proliferation of Soccer Gambling Activities”

to get caught up in playing the odds. Gambling fever is woven into its history.”) 104  Home Affairs Bureau, Public Consultation on Gambling Review: Consultation Report (HKSAR March 22, 2002), “Chapter 3: The Proliferation of Soccer Betting Activities,” 3.6. The figure is underestimated because of respondents’ unwillingness to admit to illegal gambling to government surveyors and the survey did not include people who bet with friends. 105  The difference in finding is likely to be the result of a more reliable methodology; CUHK is not a government agency and has no law enforcement responsibility. As a result, respondents were likely to be more forthcoming and honest with their answers. 106  Home Affairs Bureau, Public Consultation on Gambling Review: Consultation Report (HKSAR March 22, 2002), “Chapter 3: The Proliferation of Soccer Betting Activities,” 3.6. 107  See ibid., “Betting with Offshore Bookmakers,” esp. 3.14. Internet gambling offers a number of advantages: full time availability, ease, cheap, choice, worldwide access, comfort and secrecy at home.

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The Hong Kong government’s policy toward gambling is: “restrict gambling opportunities to limited and authorized gambling outlets only.”108 The reason for such a permissive but restrictive gambling policy is a realization that gambling cannot be altogether prohibited. Thus, it is better to authorize, regulate109 and limit it to a bare minimum in order to satisfy existing demands.110 This policy concedes that unregulated gambling would only contribute to unlimited gambling, underage gambling, criminal connections, gambling fraud and a loss of revenue for charity.111 Gambling in Hong Kong is regulated by the Gambling Ordinance (Cap 148) and Betting Ordinance (Cap 108). The Hong Kong government derives substantial and continual tax revenue from gambling activities, i.e., from about 7.21 percent (HKD 11,051 millions) of government revenue in 1995 to 5.12 percent (HKD 11,930) in 1999 (Table 5.17). Table 5.17

Betting Duty Derived from Mark Six Lottery and Horse Racing

Financial Year

Betting Duty (HKD millions)

Percentage of Government Revenue

1995/1996

11,051

7.21

1996/1997

12,191

7.01

1997/1998

13,453

4.89

1998/1999

12,228

5.66

1999/2000

11,930

5.12

Source: Adapted from Table 2.2. Home Affairs Bureau, Public Consultation on Gambling Review: Consultation Report (HKSAR March 22, 2002), “Chapter 2: Gambling Policy”

Off-shore (Internet) gambling challenged the monopoly of the Hong Kong Jockey Club, the only authorized gambling house in Hong Kong. With the advent of the information highway, Internet gambling became more prominent and has become the betting avenue of choice. A survey conducted in 1999 by the international Internet usage measurement firm, NetValue, found the number of Hong Kong residents visiting gambling sites almost doubled between October and December 1999 to 41 percent of the population, from 22 percent. Furthermore, according to the NGISC (National Gambling Impact Study Commission) report 108  Home Affairs Bureau, Public Consultation on Gambling Review: Consultation Report (HKSAR March 22, 2002), “Chapter 3: The Proliferation of Soccer Betting Activities,” 3.2. 109  Ibid., “Chapter 2: Gambling Policy,” 2.3. 110  Ibid., “Chapter 2: Gambling Policy,” 2.4. 111  Ibid., “Chapter 2: Gambling Policy,” esp. 2.2.

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on Internet gambling (1999), the number of online gamblers more than doubled from 1997 to 1998, an increase from 6.9 million to 14.5 million.112 The Jockey Club and other officials have requested the Hong Kong government to pass legislation to outlaw off-shore bookmaking.113 But, Andrew Cheng, Chairman of the Bills Committee on Gambling, refused the overture. In March 31, 1999, the Hong Kong Legco took up the issue of Internet gambling and its impact on Hong Kong’s economy and morality.114 In February 2000, the Hong Kong government contemplated stopping the use of credit cards for Internet gambling.115 However, this proposal was jettisoned when the Hong Kong Jockey Club declared that it would accept credit cards for its own Internet gambling starting September 2000.116 Finally, in May 2002 Legco passed the Gambling (Amendment) Ordinance and banned off-shore gambling, with a maximum sentence for brokers of seven years’ imprisonment and $5 million in fines and for gamblers nine months and HK$30,000. The legislative victory against off-shore gambling was the result of two potent forces at work, one economic and the other moral. They joined hands as a powerful political force to pressure the government to act. Economically, the Hong Kong government and Hong Kong Jockey Club stood to lose billions every year if off-shore Internet gambling was not regulated. Morally,117 there was great public outcry that increased gambling would lead to more individual destruction,118 112  National Gambling Impact Study Commission (June 18, 1999). “Hong Kong Battle against Internet Betting Continues,” Thoroughbreedtime.com, December 11, 2004. 113  “Offshore Internet Gambling Leaves Hong Kong Out of Pocket, Inside China,” Reuters, February 22, 2001. (The Jockey Club estimates it was losing HK$50 billion ($6.4 billion) a year to high-tech and illegal bookmakers. JC paid 11 percent of its income to the government as betting duties, a major source of income for the government. In the Lunar New Year 2001, the Jockey Club collected 8 percent less than the previous year.) 114  Hong Kong Legco, “Official Record of Proceedings,” Wednesday, March 31, 1999, . 115  Mingbao, March 2, 2000. 116  Hong Kong Economic Journal, February 26, 2000. 117  A person who fights against gambling is being called: “Moral person.” “‘Moral Person’ Working Hard in the Background” (道德佬」背後的實幹), The Society for Truth and Light, March 31, 2002, . 118  Yee Ah, “Gambler Story (1) Leaving the Police” (賭仔故事(一) 離職警察), The Society for Truth and Light, January 31, 2000, . (Ah Ke learned to gamble when he was young. He had a good paying job as a policeman. When he was in the Marines, he became a gambler and borrowed large sums of money. He finally had to escaped to China to avoid the debt.) Yee Ah, “Gambler Story (2) A Father Who was Transfixed with Gambling” (賭仔故事(一) 一個沉迷賭博的父親), The Society for Truth and Light, January 31, 2000, . (Ah Ping was an illegal immigrant from China. He took a job as a barber. Because he was hooked on gambling he had constant arguments with his wife. This affected his daughter who felt that she had no confidence in her father and still less hope for the family.)

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family tragedies,119 youth problems120 and social inequities.121 However, notwithstanding public objections, the Internet has been used to side-step the legal prohibition of the promotion of gambling in the media. Indeed, the Internet has been used to promote and facilitate football gambling, e.g., g-win enables direct betting on the net, which runs against the Gambling [Amendment] Ordinance, September 19, 2003.122 Moreover, resourceful gambling organizers have been using the Internet to promote gambling to the youth.123 Despite all this, on July 10, 2003, the Legco passed the Betting Tax (Amended) Ordinance and legalized soccer betting. This recounting of the fight against the legalization of soccer gambling and off-shore betting shows that it is a contentious issue implicating many interests and affecting some very basic values in the Hong Kong community. As a result, the fight against off-shore soccer gambling, led by, among others, the Society of Truth and Light, turned out to be the most potent common cause behind which the Hong Kong people united against cybercrime. The Jockey Club of Hong Kong is against off-shore betting because it wants to maintain its monopoly 119  For a collection of newspaper articles reporting individual and family tragedies as a result of gambling, March 2001 to May 2001, see Chan Yin Ping “Horrifying Tragic Gambling Cases” (賭博慘案驚心動魄), The Society for Truth and Light, July 30, 2001, . (There were 14 cases of suicide or illegal activities by desperate gamblers and 13 cases affecting family members or friends, leading to 14 deaths.) 120  Leung Lan Tien Wei, “Gabling Culture Spread, Poisoning of Youth” (賭風蔓延 　荼毒青少年), Hong Kong Economic Journal, July 13, 2000, . (Gambling culture is spreading in Hong Kong, especially among the youth. The Jockey Club encourages families to bring their young ones on “Jubilee Day” to have a taste of horse raising. The media encourages a gambling mentality by speculating on stocks, e.g., Tom.com, and promoting soccer betting with gambling tips and league tables in mainstream sports page.) See also Professor Chung Kim Wah, “Do Not Underestimate the Negative Impact of Gambling Activities on Youth” (不要低估賭 博活動對青少年的負面影響), The Society for Truth and Light, January 31, 2000, . (Research shows that early exposure to gambling legitimizes gambling in the eyes of children and has a long-term impact on the health of youth’s moral development.) 121  Choi Chi Sum, “The Legalization of Gambling, Taxing the Poor People in Disguise” (賭波合法化　變相窮人稅), Hong Kong Economic Journal, March 21, 2002. (The legalization of gambling on soccer as a way to increase government tax revenues will encourage more people to gamble. Currently there are 80,000 illegal soccer gamblers in Hong Kong. The legalization of gambling on soccer will cause the number to increase to 1.12 million.) 122  Chan Yin Ping, “Gambling Media without Regulation, the True Nature of Promotion by Various Major Media” (賭波資訊無王管: 各大傳媒宣傳賭波實況), The Society for Truth and Light, September 3, 2003, . 123  Edwin, “A Shocking View of Gambling,” Candle Web, July 30, 2001.

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over gambling, for economic, status and power reasons. The religious and social services groups are against off-shore gambling because they are concerned with its corruptive impact on the young and destructive tendency in individuals and families. The government is against Internet off-shore gambling because it erodes its tax base and challenges its legal authority. All three joined hands to condemn Internet gambling as being harmful to the youth, risky to gamblers and beneficial only to off-shore brokers; the same kinds of shortcomings and risks afflicting all e-transactions. In the end, the anti-off-shore gambling movement acted as a mass education forum and natural public awareness campaign in instructing the Hong Kong people of all persuasions about the ill effects and criminogenic potentials of the Internet. The public was able to see for themselves, for the first time, in a close and personal way, what an uninhibited Internet could do to their economy, morality, youth and family. Overnight, cyber-harm, experienced in the form of off-shore gambling, became recognizable, tangible, material, consequential and more importantly visceral. Cyber-criminality was no longer conceived of as a distant commercial risk in Central District, to be discussed in abstract terms,124 or received as personal software “deals” in Shamshuipo or Wanchai, to be felt in positive ways, but something that can destroy careers, harm kids, damage families and cause corruption in the community. Cyber-harm had arrived, and was here to stay. All it took now was for the public’s perception of cyber-ills and harms to be validated and reinforced. For this the public turned to the media portrayal of a moral and legal crisis in the making. Public Awareness of Computer Crime and Privacy Three high-profile cases, one in 1995 and the other two in 1999, sensitized the Hong Kong public to the kinds of law enforcement and privacy issues that can be raised in a cyber era. One of the earliest cases attracting the public’s attention to the need for better or more competent computer crime law enforcement in Hong Kong was that of a fumbled computer raid conducted by the HKP and Telecommunications Authority (OFTA) in 1995. On March 4, 1995, the HKP and OFTA conducted a raid to shut down seven ISPs for “commercial crimes involving computer hacking.” The ISPs were suspected of providing a telecommunications service without a license. The unannounced raids had the unintended effect of shutting down 10,000 Internet and e-mail accounts.125 The raids raised a number of controversial and embarrassing questions, including: What does this signal for the future of freedom of information and 124  Roderic Broadhurst & Peter Grabosky, editors, Cyber-Crime: The Challenge in Asia (Hong Kong: Hong Kong University Press, 2005), p. 105–6. 125  “Statement Concerning Police Action on Internet Providers,” March 4, 1995 (95/03/13), .

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freedom of speech in Hong Kong? What does this do to Hong Kong’s international business reputation regarding competition and free trade? Last, but not least, whether the HKP and or OFTA were cognizant of, sensitive to or otherwise concerned about these issues before, or even after, they carried out the raids.126 Furthermore, the incompetency of the HK government had brought the cyber-crime law enforcement agencies into disrepute internationally.127 This case indicated that Hong Kong law enforcement agencies were not ready for the cyber age. Another high-profile case, was that of HKSAR v. Tsun Shui Lun [1999], which raised the issue of computer privacy.128 The events of the case took place in April 1998. They involved Tsu Shui Lun, a technical assistant to a radiologist at Queen Mary Hospital. Tsu used his computer at the hospital to retrieve the medical records of then Secretary of Justice. He shared the records with his wife, friends and two local newspapers. He was arrested and prosecuted under Section 161 (1) (C) of the Crime Ordinance (Cap 200), i.e., theft of computer data for personal benefit. Tsu defended himself by saying that he released the information to the newspapers not for personal pain, a legal requirement, but “because the public have the right to know the truth,” i.e., that the government had lied about the medical condition of the Secretary of Justice requiring her hospitalization. The case raised a furor in Hong Kong over the public’s right to know, a government employee’s ethical duty to keep a secret and ultimately a patient’s privacy. In a still larger context, the case raised the broader issue of computer security. The third case raised the issue of government power to seize and search confidential computer data held by the press (media). In November 1999, a leading anti-government newspaper, Apple Daily, was searched by the Independent Commission Against Corruption (ICAC) in a corruption investigation. It was alleged that the paper’s journalists were bribing police officers to supply police information. Later two police communications officers and one reporter were sent to jail for selling and purchasing police information. During the ICAC search for evidence at Apple Daily offices, computers were seized and data bases searched for evidence. The newspaper appealed to the Court of Appeals and argued that the provisions of the Interpretation and General Clauses Ordinance for the search and seizure of journalistic materials were too broad. Otherwise, the search and seizure of information in newspapers’ computers placed the confidentiality between the

126 Ibid. 127  Michael W. Kim, “How Counties Handle Computer Crime?,” Ethics and Law on the Electronic Frontier (Fall 1997). (There was a lack of coordination between the Hong Kong Police Commercial Crime Bureau and the Office of the Telecommunications Authority, leading to a duplication of investigative effort that resulted in offenders avoiding criminal punishment altogether with payment of HK$700 administrative license fees.) 128  Hksar vs. Tsun Shui Lun – [1999] HKCFI 77; HCMA000723/1998, January 15, 1999.

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media and informants at risk and the privacy of innocent third parties in jeopardy. The case caused an uproar in Hong Kong.129 The three high-profile cases reported here are important milestones on Hong Kong’s journey of computer crime “discovery.” They are important milestones because, viewed individually in time and together as a series, they tell us how far we have come in recognizing computer crime and electronic privacy issues. The fact that the cases were able to precipitate debates over patient privacy (case 2), search and seizure authority (case 3) and cyber investigation competence (case 1) is the clearest indication yet that computer crime as an existential entity had penetrated the people’s psyche and invaded their hearts and minds. It was too early to tell whether Hong Kong would give in to intellectual thieves and privacy intruders, but the battle lines had been drawn. The cyber criminals were coming. The Arrival of Computer Crimes The first reported computer-related crime case unfolded in 1995: Hong Kong law enforcement officials cracked a major credit card fraud ring in Hong Kong and Shenzhen, seizing equipment and computer data. Each fake account was being sold for US$250.130 In November 1996, a disgruntled computer technician brought down Reuters trading net in Hong Kong. On November 10, 1997 dragonserve.com was hacked in Hong Kong. On February 9, 1998 SunSITE was hacked in Hong Kong.131 In 1999, major computer-related crime cases then started to appear with some degree of frequency. One of the more colorful hacking stories of 1999 was that of the “Hong Kong Blondes.”132 Hong Kong Blondes was a self-organized anti-establishment group that used their IT prowess to subvert communist China’s dictatorial regime and international corporations’ exploitative practices. Starting in 1998, Hong Kong Blondes launched a series of cyber-attacks against the PLA’s computer systems through DoS or “Denial of Service”—by overloading PLA websites with millions of hits. They further hacked into PLA’s site and started to corrupt its database by erasing, altering or falsifying information. As time progressed, the group began to install codes within the PLA computer mainframes in order to monitor 129  “Hong Kong’s Media Face to Face with the Taiwan Factor,” Annual Report – Joint Report of the Hong Kong Journalists Association and Article 19 (July 2000). 130  M.E. Kabay, “The Information Security Year in Review: 1995” (1995). http:// www2.norwich.edu/mkabay/iyir/1995.PDF (Visited March 26, 2012). 131  “Timeline History of Computer Hacking,” http://www.francesfarmersrevenge. com/stuff/misc/hack/timeline.htm (Visited March 26, 2012). This site started to track hacking in 1990. 132  Anthony C. LoBaido, “Hong Kong Blondes Build Techno Army against Communist Chinese Government,” smongol-l, Mar 24, 2000. (The author conducted the only seven-week long interview with the leadership of Hong Kong Blondes.) See also “Thai Hackers Claim Responsibility: Hong Kong Blondes Satellite Group Says it Made Cyber-attacks,” WorldNetDaily, February 15, 2000.

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electromagnetic signals emitted by PLA computers by remote means. Hong Kong Blondes even managed to place “social engineers” (cyber-moles to work in PLA) to obtain access codes. The Ministry of Public Security acknowledged the presence of such illegal attacks and unauthorized access of their websites (72,000 cyber-attacks launched against the PLA between January and September in 2000, with 165 successful penetrations in 2000 alone). On May 20, 1999, the HKP, after prolonged investigation (five months) successfully broke up an organized hacking syndicate, seizing computers and CDROMS. A total of ten people between the ages of 16 and 21 were arrested; three hackers, a middleman and six buyers of passwords. This was the first organized hacking case investigated and prosecuted in Hong Kong.133 The case started with an IPS filing a complaint of hacking with the Computer Crime Section of the Commercial Crime Bureau (CCB) which launched investigations in January. According to police, the hackers hacked into 200 legitimate accounts to obtain their passwords. The passwords were sold at HK$350 (US$45.13) for a month’s access. The buyers would use the illegal access codes to rack up Internet time worth between HK$2,000 and HK$3,000 a month. The going rate for Internet access was HK$150 ($19.34) and HK$1.98 ($0.26) per hour for Public NonExclusive Telecommunications (PNETS) license fees. The hackers were also guilty of setting up a website to sell illegally downloaded music at HK$88 ($11.35) per CD or HK$160 ($20.63) for two CD copies. In June 1999 seven Hong Kong teenagers were arrested for using stolen credit card numbers on the Internet to purchase computer products worth more than HK$1 million.134 On April 4, 2000, Magistrate Ian Candy imposed custodial sentences on three hackers (Po Yiu-ming, 19, Tam Hei-lun, 19, and Mak King-lam, 18), sending them to jail and detention center for 49 computer-related offenses, including illegally hacking into Internet accounts. Po stole a total of 127 login names and passwords and resold them. Mak admitted to establishing a website to sell illegally downloaded MP3-format songs for $88 each (US $11) for a total of $15,000 (US $1,900). According to the investigators: “It is … the first case brought to the court involving an Internet user selling stolen data to reap unlawful profits.”135 In 2000, a Hong Kong IPS discovered unauthorized alterations to its webpage. It subsequently received a message demanding that several thousand US dollars be deposited in a Russian bank account in order for the attacks to cease.136

133  “Hong Kong Computer Hacking Syndicate Smashed,” IT Daily, May 30, 1999 (Newsbytes). 134  Alex Lo, “Computer Crime a Magnet for Teens,” South China Morning Post, June 6, 1999, p. 2. 135  “Singapore, Hong Kong Crack Down on Teen Hackers,” CNN, March 23, 2000. 136  Victor Yik-kee Lo, “Tracing and Tracking Suspects across Computer Networks,” paper presented at the 8th World Congress of the Asia Crime Prevention Foundation, Beijing,

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Table 5.18 lists a number of successful prosecutions the Department of Public Prosecution mounted in Hong Kong in 2001–2002. Table 5.18

Selected Successful Prosecutions of Computer Crimes in Hong Kong: 2001–2002

Case

Nature of Offense

Facts

Disposition

HKSAR v. KUNG Hang-ming ESCC 2832/2002

Obtaining access to a computer with dishonest intent section 161 of the Crimes Ordinance (Cap 200)

In April 2002 Ms. Kung, the defendant, stole the login name and password from her supervisor and transmitted trade secrets to her new employer, a competitor. She did so by remotely controlling a Singapore computer

Convicted in October 2002 of 30 offences under section 161 of the Crimes Ordinance (Cap 200)

HKSAR v. LEE Shiukeun DCCC 1134/2001

Conspiracy to Defraud under section 19 of the Theft Ordinance (Cap 210)

Between June 1, 1998 and March 6, 2000, the two defendants established six sham companies and bank accounts to conduct overseas trading. The defendants netted a total of US$1.02 million before being arrested

Convicted on April 29, 2002 of six offences under section 19 of the Theft Ordinance (Cap 210)

Not disclosed

Obtaining access to a computer with dishonest intent section 161 of the Crimes Ordinance (Cap 200)

In November 2000, the defendant, a police officer, accessed police organized crime data to obtain information on particular vehicles and drivers so that his girlfriend could track down her ex-husband’s whereabouts

Convicted on September 17, 2001 under section 161 of the Crimes Ordinance (Cap 200). Sentenced to six months

China (2000), (Visited November 6, 2004).

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HKSAR v. CHAN Kwok-hung and five others ESCC 527/2002

Dealings with proceeds of indictable offences

The victim of this case had HK$520,000 in his bank account. Defendant Chan Kwok-hung and five others forged his signature to obtain a new PIN number from the bank, with it new checkbooks and an ATM account. With these, the defendants were able to transfer the victim’s funds electronically to their accounts

Convicted on March 2, 2002 of dealings with proceeds of indictable offences

HKSAR v. CHEUNG Wing-hang ESCC 3532/2001

Obtaining access to a computer with dishonest intent section 161 Crimes Ordinance (Cap 200) and theft under Theft Ordinance (Cap 210)

Defendant Cheung transferred money from his girlfriend’s account into his own e-banking account through another girlfriend’s account

Convicted on November 13, 2001 of nine counts under the Theft Ordinance (Cap 210) and 15 counts under section 161 of the Crimes Ordinance (Cap 200)

HKSAR v. Criminal damage FUNG Chikwan, ESCC 268/2002

On November 25, 2001, defendant Fung, a disgruntled dismissed employee, hacked into his ex-employer’s computer through the Internet and deleted the employer’s business records with substantial damages

Convicted of one count of criminal damage

Living off the earnings HKSAR v. LI Tai-chung of prostitution ESCC 1899/2002

In June 2002, the defendant offered the sexual services of young girls over the ICQ for HK$3,000

Convicted on October 11, 2002 of living off the earnings of prostitution

Policing Computer Crime in Hong Kong HKSAR v. CHUNG Yee-yung, NKCC 5804/2002

Publishing an obscene article under section 21 of the Control of Obscene and Indecent Articles Ordinance (Cap 390)

The defendant uploaded child pornography material (oral sex between a 12–14-year-old boy and a masked man) in Hong Kong onto the net which was viewed in New Jersey. In May 2002, the defendant was arrested as a result of a joint operations (“Operation Web Sweep”) between New Jersey police and the HKP.

211 Convicted on September 30, 2004 for violating section 21 of the Control of Obscene and Indecent Articles Ordinance (Cap 390) and sentenced to 14 months

Source: Lo Hing Cheung, “Cyber Crime: The Challenges and Way Forward.” Paper presented at 16th International Conference, Technology and its Criminal Responsibility, Security and Criminal Justice, Charleston, South Carolina, December 6–10, 2002. Lo was the Senior Assistant Director of Prosecution, Department of Justice, Hong Kong SAR. http://www.isrcl.org/Papers/Lo.pdf.

The purpose behind detailing these computer crime cases from the period 1995–2002 is to demonstrate that by 2002 computer crime was accepted very much as part of the landscape and scenery of the information highway in Hong Kong. The challenge was now to devise effect measures to prevent their occurrence and ameliorate their impact. VI. Conclusion This chapter has detailed for the reader how computer crime developed in Hong Kong, against the backdrop of an entrenched Chinese culture and as informed by post-1997 political developments. The investigation, drawing upon Becker’s sociological insight that “Deviance is not a quality of the act the person commits, but rather a consequence of the application by others,” adopts the thesis that (computer) crime is made, and is not natural or self-evident. In the process of this investigation, it was discovered that the “creation” (by government) or “discovery” (by people) of computer crime in Hong Kong resulted from the convergence of a number of forces—political (the 1997 transition), legal (privacy), economic (e-banking), moral (e-gambling) among others—involving many parties—including HKSAR, HKJC and the foreign anti-privacy coalition— and people, and played out over a long period of time—1996–2003. This research offers a number of theoretical insights and empirical findings. First, this investigation found that as a governance philosophy and a crime control strategy, the HKSAR government’s approach to computer criminality was

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to treat it not as a new kind of crime, to be legislated by the government, but as a traditional crime made easy and accessible by technology, to be dealt with by the private sector. This understanding of and reaction to computer crime is driven by strong cultural forces and informed by equally vibrant socio-political traditional principles. Culturally, Chinese civilization has believed in a non-changing, physical as well as moral, universe, constituted by two fundamental cosmic forces interacting with each other: positive (yan) vs. negative (yin) forces,137 in a perpetual struggle to maintain a delicate balance.138 This gives rise to the conventional wisdom that nothing in life really changes, and correspondingly, the notion that the best way to deal with adversities in life, including crime, is not to seek positive change but to embrace them with acceptance.139 This philosophy of life (morality) informs that the best way to deal with problems is “wuwei” or “do nothing,” and in the practical context, doing nothing more than is absolutely necessary. With regard to computer crime, this means dealing with computer criminality using existing criminal law. Politically, this Chinese philosophy resonated well with British colonial mentality and was adopted as a pragmatic de facto British colonial policy in Hong Kong before 1997.140 After 1997, the same such “positive noninterventionist” social and economic policy survived British rule and became part of the HKSAR approach to governance, i.e., minimalist government and hands-off administration. Second, this investigation found that the Hong Kong people were slow to take computer criminality seriously, much less recognize it as morally reprehensible. This neutral, benign attitude toward computer criminality, deemed incomprehensible and exceptional by Westerners, is in fact very natural and reasonable when one takes into account Chinese cultural attitudes towards crime.141 Traditionally and 137  The Western rendition of yin and yang could be found in the thinking of Hegel’s (1770–1831) concept of dialectics. As a school of thought Hegel’s dialectics echoed yin-yang thinking in observing that cognitive ideas as with material things in the world were constantly being formed, destroyed, changed and mutated as propositions (theses) encounter counter-propositions (anti-theses), forming new syntheses. 138  “The I Ching,” in James Legge, tr., Sacred Books of the East, vol. 16 [1899], http://www.sacred-texts.com/ich/index.htm#contents (Visited Match 26, 2012). 139  “The Daoism (Taoism) Philosophy,” http://www.daoism.net/ (Visited Match 26, 2012). 140  Colonial rule in Hong Kong was indirect rule. Lau Siu-kai, “The Government, Intermediate Organizations, and Grass-Roots Politics in Hong Kong,” Asian Survey, 21(8) (August 1981): 865–84. This dovetails neatly with traditional imperial China governance philosophy and social control practice, i.e., indirect rule by way of family. See Hsiao, Kungch’uan, Rural China: Imperial Control in the Nineteenth Century (Seattle, WA: University of Washington Press, 1960) and Ch’ü, Tung.-tsu, Local Government in China under the Ch’ing (Cambridge, MA: Harvard University Press, 1962). 141  Hsu Dau-lin, “Crime and Cosmic Order,” Harvard Journal of Asiatic Studies, 30 (1970): 111–25. (The common understanding that crime in imperial China was considered a disturbance of totality of social qua moral order was ill informed, from the public and commoners’ perspective.)

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culturally, crimes in China are considered moral breaches (mala in se) and not mere legal wrongs (mala prohibitum). People were punished for moral failures not legal violations.142 This spontaneous understanding of crime and visceral reaction to offending could still be found in Hong Kong. As a result computer criminality was never considered “real” crime deserving of moral condemnation and social rejection.143 Third, this investigation found that Cohen’s “moral panic” approach to the understanding of the criminalization of computer crime does not quite explain Hong Kong’s historical circumstance, cultural conditions and contemporary situation. Hong Kong is a place given to pragmatic governance, negotiated politics, flexible policies and consensus rule. It is not driven by adversary parties or confrontational politics, with issues defined in definitive right or wrong terms, much less an absolute black or white manner. Fourth, the lack of finding to sustain a “moral panic” thesis in the run up to the criminalization of computer law does not reject the potency of “moral panic” to explain the criminalization process once and for all. Rather, it speaks to the fact that Cohen’s model is not universal, and has to be revised in light of local circumstances and as applied to indigenous culture. Thus, a question is raised whether the “moral panic” rule applies at all in dictatorial communist states, e.g., China, or paternalistic administrative states, e.g. Hong Kong, herein discussed. Fifth, this investigation observes that to reject Cohen’s “moral panic” approach is not to deny the Hong Kong government’s dominant role in spinning a “morality play” to convince the Hong Kong people that computer crime is a looming menace and emerging problem, and that the people (not government) should be doing something about it. In order to account fully for the Hong Kong government’s role in “creating” computer crime (out of paternalistic instinct) to be “discovered” by the people (based on laissez-faire policy), it is necessary to reveal certain historical, cultural and political factors that define the Hong Kong government’s approach to governance. Historically, Hong Kong is an apolitical administrative state. All political differences are resolved at the administrative level with a “one best means to a well-defined end” approach.144 142  “Confucianization of the Law: A Study of Speech Crime Prosecution in China,” E-Law, 11(3) (September 2004). (In imperial China Confucianization of the law meant that law gave expression to and provided enforcement of Confucius’ ethics.) 143  I thank one of the reviewers who pointed out to me: “It might be useful, here, to note the parallels between the notion that crime is created versus being natural and the criminal law’s distinction between crimes that are mala in se (evil in themselves) and mala prohibitum (the product of regulation).” This comment has allowed me to investigate how Chinese culture understood crime as a moral vs. legal phenomenon, elaborated above. 144  Anthony B.L. Cheung, “Rebureaucratization of Politics in Hong Kong: Prospects after 1997,” Asian Survey, 37(8) (August 1997): 720–37.

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Culturally, the operations of Hong Kong are informed by two Chinese cultural traits: paternalism and elitism. Paternalism means the government knows “best.” Elitism means experts know “all.” Since the government also has all the experts and expertise, it is in the position to provide and is expected to deliver the “best” policy for “all.” Politically, Hong Kong maintains a consensual, utilitarian, collective approach to governance. This means all policy disagreement should and can be resolved by agreement (consensual) through negotiation and compromise with cost-benefit analysis (utilitarian) of the material kind, and for the public good (collective) in the long term.145 An administrative state with a “government knows best” mentality and pragmatic approach to governance exhibits certain tendencies: pro-active social planning and stern central administrative control. This is made apparent in the speech by Mr K.C. Kwong, Secretary for Information Technology and Broadcasting (ITB), on the occasion of the 14th International Computer Exposition (May 7, 1998): Information technology is now widely used for work, research, education, as well as for leisure and entertainment. It has become an integral part of our life. The Hong Kong Special Administrative Region Government is fully aware of the importance of this development. That is why we have recently set up the Information Technology and Broadcasting Bureau which will be responsible, inter alia, for coordinating efforts in the community in the development and use of IT. Consistent with our economic philosophy, we will be promoting the development of an environment in our community which stimulates creativity and fosters advances in the use of information technology. We are determined to make Hong Kong a leader in the information world of tomorrow. We look towards you—I.T professionals, computer manufacturers and suppliers, service providers and everybody else in the IT industry for support in our endeavour. We also look towards you for help to raise community awareness, and to identify more opportunities for the application of information technology in our daily life.

In other words, the Secretary of the ITB has: First, affirmed the ubiquitous nature of computers in Hong Kong, as a matter of fact: “It has become an integral part of our life.” 145  Ambrose Yeo-chi King, “Administrative Absorption of Politics in Hong Kong: Emphasis on the Grass Roots Level,” Asian Survey, 15(5) (May 1975): 422–39. (Consensus was achieved through elite integration with broad grassroots consultation and participation. Endacott called this “government by discussion” (G.B. Endacott, Government and People in Hong Kong, 1841–1962 (Hong Kong: Hong Kong University Press, 1964), p. 229), while King (citing John K. Fairbank) called it “Synarchy rule.”

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Second, confirmed the dominance and priority of the Hong Kong government developmental scheme, as a non-negotiable item: “We are determined to make Hong Kong a leader in the information world of tomorrow.” Third, demonstrated the government’s foresight, as a fundamental task: “The Hong Kong Special Administrative Region Government is fully aware of the importance of this development.” Fourth, displayed the government’s proactive posture, as a basic administrative practice: “That is why we have recently set up the Information Technology and Broadcasting Bureau which will be responsible.” Fifth, revealed the government’s paternalistic tendency for the collective good of all, as a philosophy of governance: “Consistent with our economic philosophy, we will be promoting the development of an environment in our community which stimulates creativity and fosters advances in the use of information technology.” Sixth, showed the government’s administrative and expert approach to problem solving, as a settled expectation for all: “We look towards you— IT professionals, computer manufacturers and suppliers, service providers and everybody else in the IT industry for support in our endeavour.” The Y2K “Millennium Bug” problem further allowed the Secretary to put the government’s paternalistic and elitist approach to problem solving into practice; revealing it to all those who cared to observe: 1. Educating the public and raising their awareness to the needs, using facts (the way the administration sees it): “The problem occurs because, in order to save memory space, we used to record years in our IT systems and equipment using the last two digits rather than all four, thus 98 instead of 1998. This means that those systems and equipment cannot distinguish, for example, between the year 2000 and the year 1900. It sounds trivial but it means that many of our equipment and IT systems, if not rectified, could fail when we reach the Year 2000.” 2. Scaring the public with the worst case scenario: “The problem is extensive and potentially disastrous if not properly addressed as there are few, if any, areas of modern life that are not touched by IT …. In another incident, a supermarket’s computer system rejected a new product with a five year shelf life into the Year 2000, registering it as nearly 100 years old. Think of the chaos similar mistakes could cause in our business transactions, in our economy and in our daily lives!”

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3. Mobilizing the public through a “crisis”: “An international IT research authority, the Gartner Group, once estimated that the worldwide cost of fixing the Year 2000 problem would reach some US$300 billion to US$600 billion. Their estimate is now considered conservative by some other industry experts. Based on more recent experience in the rectification of the Year 2000 problem in businesses and Government, some have predicted that the cost could approach US$1.5 trillion.” 4. Channeling the public’s effort to act (alongside the government and in the government’s preferred way): “We in Hong Kong are of course not immune to the Year 2000 problem. Within the Government itself, we have embarked upon a comprehensive rectification and replacement programme to ensure Year 2000 compliance for our IT systems and equipment. We are also liaising with those non-government organizations which are funded or regulated by Government and which provide services to the public to ensure that they would also be able to achieve Year 2000 compliance before the new millennium arrives. In addition, we would organise publicity programmes to promote awareness of the problem on a communitywide basis. But Government alone cannot solve the Year 2000 problem. I therefore appeal to you all, as an IT vendor or an IT professional, as a business operator or IT user, or just as a lay person interested in IT, to pay serious attention to the Year 2000 issue, to accord top priority to its resolution, and to take positive action so as to prepare your company, your clients and yourself for the smooth transition to the Year 2000.” Depending on one’s sense and sensibility or disposition and conviction, what the HK government did in relation to the Y2K problem can be described as using “moral panic” tactics of sorts. However, its actions might be better explained by history, culture and politics that inform the HK government’s colonial past and administrative state present. Viewed in this light, the HKSAR was not creating a “moral panic” as much as it was acting out its destined role based on a long history and rooted culture. It certainly could be argued in relation to Cohen that “moral entrepreneurialism” is everywhere and that a “paternalistic-administrative-consensus” government is likely to engage in “moral panic” activities to make dissenters and naysayers come to terms with the government’s vision and programs. On the face of it this argument has some appeal, but ultimately it fails to be convincing for the following reasons. The HKSAR government need not resort to “moral panic” to amplify risk in order to break people’s resistance: first, HKSAR is convinced that most people trust the government to do the best. Most of the people are indeed supportive of the government, as a matter of course. Those who don’t will be ostracized by the majority. Second, the HKSAR is adept at convincing the people that what is good for the government (collective) is ipso facto good for the people (individual), or at least sincerely done for the people’s own good. Third, the HKSAR believes in the malleability of humans. It believes in educating people, instead of compelling

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(scaring) people to come to terms with the government’s view. Fourth, the HKSAR does not subscribe to a “winner takes all,” still less a “take no prisoners” approach, to policy development. Rather, it believes in compromise and negotiation, in order to accommodate differences of opinion and conflicts of interest, with the hope of building permanent alliances, durable coalitions and lasting rule. Fifth, the HKSAR takes a holistic view of things. This means that it is more concerned with maintaining good relationships with people than scaring them into submission. Sixth, the HKSAR takes a longer view of things. That means it does not want to cry wolf one time too many and lose the trust of the governed and the legitimacy to govern. Finally, this investigation concludes with the observation that interest party politics best explains the Hong Kong computer crime criminalization process.146 Observing computer crime creation up close, one finds interest group theory to be a better fit than the Marxist model. Instead of one sweeping war (World War II), orchestrated by a grand master (Marx’s capitalist or Cohen’s moral entrepreneur), there are many (Iraq) battles commanded by various coalition commanders. There is thus not one “moral panic” being manufactured but many “morality plays” being constructed. These “morality plays” sometimes re-enact each other’s plot, much like the films Alien, Aliens and Alien4, but most of the time, they play with their own script and dance to their own tune, echoing and reflecting, supplementing and reinforcing, and yes, even rejecting and denying each other. How “morality plays” intersect and interact with each other depends less on design than default, as reflecting the spirit of the time, as dictated by opportunities of the moment, as driven by the dynamics of the situation and as influenced by the personalities of the time. Interest group politics are as unpredictable as they are exciting. “Morality plays” can be scribed with the best of effort, but their ultimate acceptance hinges on individual performance and situational contingences.

146  King, “Administrative Absorption of Politics in Hong Kong.”

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Chapter 6

Assessing Police Investigative Powers: The Case of Interception of Communications Surveillance Ordinance The fact of the matter is, when historical or contemporary Chinese evaluate the law, they do so with reference to Qing, Li standards. Huo Cunfu (2001)1 The common law would have been ineffective if it had not taken account of the culture and customs of the Chinese. Matthew H. Hurlock (1993)2 No elaboration of statute law can forestall variant cases and the need of interpretation ad hoc … John Dewey3

Introduction At 2:30 a.m. on Sunday, August 6, 2006, the Hong Kong Legislative Council (Legco), passed the much delayed4 and long awaited Interception of

1  Huo Cunfu, “The Cultural Traits of Traditional Chinese Legal Culture: The Origination, Development and Prospect of Qing-Li-Fa,” Legal System and Society Development, 7(3) (2001), . (The article traces the origin and development as it details the theory and practice of QLF as jurisprudential principles and cultural ideas in imperial China.) 2  Matthew H. Hurlock, “Social Harmony and Individual Right in China,” Colum. L. Rev., 93 (1993): 1318. (Reviewing Berry Fong-Chung Hsu, The Common Law System in Chinese Context (Armonk, NY: M.E. Sharpe, 1992). 3  John Dewey, Human Nature and Conduct, ed. Jo Ann Boydston (Carbondale, IL: Southern Illinois University Press, 1922; 1988 ed.), p. 74. 4  The first Interception of Communications Ordinance (ICO) was introduced by Legislator To Kun-sun as a private member bill. It passed the Legislative Council in June 1997 but was never signed into law by the Chief Executive on the pretext that it might hamper Hong Kong law enforcement. For the legislative history of ICO, see ICO Legco Papers, Appendix I.

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Communications Surveillance Ordinance in Hong Kong5 (hereinafter ICO),6 with a vote of 32–0,7 after a protracted,8 raucous,9 fractious10 and litigious11 legislative process. The Bill had to be passed by August 8, 2006 to avoid a “legal vacuum.”12 Forebodingly the Legco President warned: “We will meet for as many hours as we need, and use whatever methods we have at our disposal, to get this bill done.”13 The government proposed 190 amendments. The democrats (mainly Margaret Ng Ngoi-yee and James To Kun-sun) proposed more than 200.14 The Frontier legislator Emily Lau Wai-hing wanted the ICO to equally appy to the Chief Executive. Civic Party lawmaker Ronny Tong Ka-wah observed that it is unconstitutional for the Chief Executive to operate outside the ICO. Permanent Secretary for Security Stanley Ying Yiu-hong, however, dismissed such concerns as being over-exaggerated in fact and insignificant in consequence.15 Legco member Leung Kwok Hung legally challenged President of the Legislative Council Rita Fan’s decision to deny Leung’s amendment to the ICO as violating Hong Kong Basic Law Article 74, to wit: “Bills which do not relate to public expenditure or political structure or the operation of the government may be introduced individually or jointly by members of the Council.”16 The ICO sponsored by the Hong Kong government was finally passed over the objection of a “pan democratic” group of legislators, led by Margaret Ng Ngoi-yee 5  For a brief background and summary of the ICO, see Legal Service Division Report on Interception of Communications and Surveillance Bill Paper for the House Committee Meeting, March 10, 2006. Legislative Council. LC Paper No. LS44/05–06, . For a brief report of events on the Legco floor, see “Legco Passed Interception of Communication Law,” Ming Bao, August 6, 2006, . 6  Article 1 (1): “This Ordinance may be cited as the Interception of Communications Ordinance.” 7  Jonathan Cheng, “Snooping Law Set for Debut,” The Standard, Monday, August 7, 2006. 8  Jonathan Cheng, “Legislators Protest as Fan Warns of All-Night Sessions,” Standard, August 4, 2007. (Four hours into the second of a five-day emergency meeting, the President of Legco warned of a lengthy debate.) 9  “Lee Siu-kowng, To Kun-sun, Both Attack Each Other as Shameless,” Ming Bao, August 3, 2006. 10  Ravina Shamdasani, “Chief Executive Could Spy on Opponents, Legislators Claim,” South China Morning Post, June 6, 2006, p. 3. 11  “Leung Kwok Hung Seeks Judicial Appeal Challenging Ms. Fan’s Decision to Quash Amendment,” Ming Bao, August 6, 2006, . 12  Jonathan Cheng, “Sunset Clause in Spy Bill ‘Utterly Rejected’,” Standard, July 28, 2006. 13  Cheng, “Legislators Protest as Fan Warns of All-Night Sessions.” 14 Ibid. 15  Shamdasani, “Chief Executive Could Spy on Opponents, Legislators Claim,” p. 3. 16  “Leung Kwok Hung Seeks Judicial Appeal Challenging Ms. Fan’s Decision to Quash Amendment,” Ming Bao.

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(Civic Party) and James To Kun-sun (Democratic Party).17 The pro-democracy group did not vote for the ICO after its last ditch effort to amend the Bill with a “sunset” amendment was quashed by a vote of 18 to 32 (5 to 22 among functional representatives, 13 to 10 among directly elected).18 The ICO ushered in a new era of police accountability in Hong Kong,19 but it also raised more questions than it resolved. In studying and assessing the ICO there is a host of questions and plethora of issues that can and should be addressed. On legal philosophy and policy: First, throughout the legislative debate and public discourse, the (functional) necessity of ICO was tacitly assumed but never affirmatively demonstrated. Second, the meaning of “privacy” and “security” in the local (Asia-China-Hong Kong) cultural and situational context was never explored, still less defined. Third, there was no attempt to balance “privacy” interests against “security” needs, again within a Chinese society and international commerce center. On legislative procedure and process: Why was the original ICO (1997) not adopted by the government in a timely fashion? Why did the Hong Kong government and Legco not take the necessary time to negotiate for a settlement over ICO? Constitutionally is it appropriate for the administration to affirmatively lobby/promote the ICO, with dedicated government staff, on the Legco floor and in between ICO legislative debate? Legally, can the government spend public money to assure the passage of a bill? On regulatory framework and content: What is a “reasonable” expectation of privacy justifying legal protection? What makes for a “public security” threat calling for surveillance? Should security threats to China as a nation ever be considered a concern of the Hong Kong government? Can the ICO, as proposed, effectively deal with post-9/11 terrorism intent on destabilizing China or foreign spies working in Hong Kong? On impact and implication: Socially, is there a need for more anti-terrorism, anti-subversion police powers? Politically, has the ICO legislative proceeding destroyed the personal trust between conservative and liberal Legco members, and the institutional working relationship between the public and the Hong Kong government? Legally, what is the best arena to determine the meaning of “reasonableness” of privacy expectation or “urgency” of public security? The above questions and issues cannot be adequately addressed and effectively resolved without first attending to the more fundamental question: What jurisprudential principles should be applied in assessing the language and implementation of the ICO? Specifically, should law reform in Hong Kong take into account Chinese jurisprudential principles? In what way and to what extent 17  See Jonathan Cheng, “Passage of Spy Bill Looms as Lock-in Averted,” Standard, Saturday, August 5, 2006. 18  Cheng, “Snooping Law Set for Debut.” 19  Kam C. Wong, “Police Powers and Control in Hong Kong,” International Journal of Comparative and Applied Criminal Justice, 34(1) (2010): 1–24.

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should Chinese culture in general, and jurisprudential thinking in particular be a factor to be considered in Hong Kong law making and judicial decisions.20 Finally, what are the short-term impact and long-term implication of transporting and transplanting foreign laws onto Hong Kong soil?21 This chapter provides a critical assessment of the ICO, with a twist. Instead of evaluating the ICO based on preconceived and conventional Western jurisprudential principles and foreign legal practices from abroad, i.e., individual rights as secured by rule of law,22 the chapter assesses the ICO with reference to prevailing23 (Chinese-Hong Kong) cultural standards from within,24 i.e., Qing-LiFa (QLF).25 A cursory review of legal and social science literature26 shows that there is little 20  See generally, Berry Fong-Chung Hsu, The Common Law System in Chinese Context. 21  Shaohong Zhuang, “Legal Transplantation in the People’s Republic of China: A Response to Alan Watson,” European Journal of Law Reform, 7(1/2) (2005): 219; Deming Liu, “The Transplant Effect of the Chinese Patent Law,” Chinese Journal of International Law, 5 (2005): 733; Ni Zhu, “A Case study of Legal Transplant: The Possibility of Efficient Breach in China,” Geo. J. Int’l L., 36 (2005): 1145; Pitman B. Potter, “Legal Reform in China: Institutions, Culture, and Selective Adaptation,” Law & Soc. Inquiry, 29 (2004): 465. 22  Qu Yongdong, Chinese Western Legal Culture Compared (Beijing: Beijing University Press, 2003). 23  There are three issues here: first, whether Chinese jurisprudential principles should apply in Hong Kong, philosophically or constitutionally, since the Basic Law of Hong Kong calls for the retention of the British legal system. Second, to what extent Chinese jurisprudential principles are embedded within Hong Kong culture, in traditional or mutated form. Third, in what way and to what extent Chinese culture in general, and jurisprudential thinking in particular, influence Hong Kong law making and judicial decisions. See generally, Berry Fong-Chung Hsu, The Common Law System in Chinese Context. 24  Jacques deLisle and Kevin P. Lane, “The Battle Over ‘The People’ and the Business Community in the Transition to Chinese Rule,” U. Pa. J. Int’l Econ. L., 25(2004): 1525. (Democratization of Hong Kong was a top down process. There is a residual question as to whether democracy and rule of law is compatible with Hong Kong people’s values and desires, sense and sensitivity. The best interests of the Hong Kong people have often been invoked by the last Governor and democrats, but very little attempt has been made to ascertain what the Hong Kong people want or need.) 25  Fan Zhong Xin (范忠信), Qing Li Fa Yu Zhong Guo Ren (Qing Li Fa and the Chinese) (情理法與中國人) (Beijing: Zhongguo Falu Chubanshe, 1992). (中國人民大學 出版社1992年版); Beijing qing nian bao fa zhi zhou kan bian ji bu (北京靑年报法治周刊 编辑部), Jiao dian dui hua: Qing, Li, Fa (Focused Discussion: Qing, Li, Fa) (焦点?话. 情 理法) (Beijing Shi: Zhongguo zhengfa daxue chu ban she, 2001). 26  An electronic search (on June 1, 2007) of Lexis-nexis using the key words “Hong Kong” and “police” or “Interception of Communication and Surveillance” with no date limits yielded no article bearing on this subject (police surveillance, privacy legislation) generally, and ICO particularly. The same lack of result obtained with the use of political and social science literature search engine Pro-Quest. The only relevant article published on ICO is Thomas E. Kellogg, “A Flawed Effort? Legislating on Surveillance in Hong Kong,”

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research on the ICO,27 and still less scholarly discourse or public debate on the proper jurisprudential standards to be applied in evaluating Hong Kong legislation. The current research raises a fundamental jurisprudential issue: should Hong Kong law be formulated or evaluated using indigenous legal standards and local jurisprudential principles,28 based on Asian values,29 Chinese culture and/or Hong Kong ethos? One of the major contributions of this chapter is its invitation to cross-cultural scholars and domestic legislators to look at the ICO through the eyes of Hong Kong people, an approach long championed by critical comparative jurists30 and visionary local scholars,31 but which has long been deliberately ignored by the conservative32 Hong Kong government and conveniently side-stepped by Hong Kong Journal, April 1, 2007, . 27  Graham Greenleaf and Robin McLeish, “The Rule of Law and Surveillance in Hong Kong,” Privacy Law and Policy Reporter, 8 (2006); Kellogg, “A Flawed Effort?” 28 “香港基本法委员会委员陈弘毅:人大决定重法、理、情” (“Hong Kong Basic Law Committee, Chen Hung Yee: NPC Decision Focuses on Q-L-F” ). .Visited March 18, 2012 29  Old China jurists (Clark) and new Chinese law experts were more prepared to seek a balance between universalism and localizm in discovering the rule of law in China. David Clark, “The Many Meanings of Rule of Law,” http://www.lfip.org/lawe506/documents/ lawe506davidclarke.pdf Visited March 18, 2012. (Constitutional principles and rule of law practices in East Asia developed along many divergent paths.) Randall Peerenboom, “Let One Hundred Flowers Bloom, One Hundred Schools Contend: Debating Rule of Law in China,” Michigan Journal of International Law, 23 (2002): 471–36. (The concept of rule of law should not incorporate liberal democracy model. Chinese people is entitled to their own ideas and ideal of rule of law.) 30  Perry Keller, “Sources of Order in Chinese Law,” The American Journal of Comparative Law, 42(4) (1994): 711–59; Philip C.C. Huang, “Court Mediation in China, Past and Present,” Modern China, 32(3) (2006): 275–314. (“For better or for worse, the contemporary Chinese approach to court mediation is predicated on an implicit epistemological method that contrasts sharply with the formalist ideal (which characterizes modern Western Continental law): instead of starting from universal premises about rights and then applying those by legal (deductive) logic to all fact situations, Chinese judges start instead from the nature of the fact situation and then decide to mediate or arbitrate or else adjudicate, as appropriate. In placing the concrete and the practical ahead of the abstract, they still share a good deal in legal reasoning with judges of the Qing.”) 31  Sin Wai Man and Chu Yiu Wai, “Whose Rule of Law? Rethinking Post- Colonial Legal Culture in Hong Kong,” Social and Legal Studies, 7(2) (1998): 147–69; Bobby K.Y. Wong, “Dispute Resolution by Officials in Traditional Chinese Legal Culture,” Murdoch University Electronic Journal of Law, 10(2) (June 2003). (The Rule of Law grand narrative in post Hong Kong ignores and marginalizes qing, which is a very important element of the cultural roots of the Hong Kong Chinese.) 32  Conservatism in the context of post-July 1, 1997 Hong Kong governance is for the Hong Kong government to maintain the pre-1997 status quo, i.e., British administrative

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liberal33 local politicians. In so doing, this chapter questions the appropriateness and challenges the legitimacy of adopting Western jurisprudential principles in shaping and evaluating the Hong Kong legal system, especially after July 1, 1997. This investigation is anchored within a larger intellectual arena,34 i.e., the feasibility and utility of transplanting foreign legal institutions to domestic soil, the problems and promises of the indigenization of foreign laws35 and the appropriateness and legitimacy of privileging Western rights in Asian societies.36 The chapter is organized as follows. After this brief introduction, section I (“Context”) explores the historical, political and legal context leading to the passage of the ICO. It addresses the question: why is the ICO necessary, politically and legally? Section II (“Rationale”) details the reasons for undertaking this study. Philosophically, it argues against treating Western human rights standards as a universal, dominant, exclusive yardstick to evaluate the Chinese-Hong Kong legal system and process. Intellectually, it observes that foreign observers are prone to view China through a Western lens. It ends with a proposition: the study and assessment of the Chinese-Hong Kong legal system should be conducted from an indigenous standpoint and informed by empirical data. Section III (“Standards”) makes the case that QLF is a more appropriate evaluative paradigm for the ICO. rule and common law legal style. 33  Liberalism in the context of post-July 1, 1997 Hong Kong politics means that Hong Kong should transform itself into a Western democratic city-state as much and as soon as possible. 34  There is a need to investigate Chinese law in Chinese society, interdependently and interactively (p. 2). Xu Zhongming, Precedents, Stories and Judicial Culture of Ming Qing Dynasties (Anli, Gushi yu Ming Qing shiqi de shifa wenhua) (Beijing: Falu Chubanshe, 2006), “Future Prospect of Historical Chinese Legal Result: Overtaking the West, Returning to Indigenous Roots,” pp. 3–24. (China is a country of long history and rich culture. The West was successful in transforming China through military domination, economic exploitation and cultural penetration, with the help of Chinese reformers and in the name of modernization. In the process Chinese jurisprudential thoughts and legal system were summarily dismissed and totally rejected as not compatible with modern and progressive (Western) ideas and ideals, standards and benchmarks.) See also David A. Funk, “Traditional Chinese Jurisprudence: Justifying Li and Fa,” S.U. L. REV., 17 (1990): 1, 2; Hui Lo Pan, “A Study of Chinese Jurisprudence,” Illinois Law Review, 6 (1911–12): 457. 35  Western jurists deny the existence of Chinese law in theory or are otherwise critical of Chinese law in practice because Chinese law does not fit with the Western paradigm. William P. Alford, “Law, Law, What Law?: Why Western Scholars of Chinese History and Society Have not had More to Say about its Law,” Modern China, 23(4) (1997): 398–419. (Western Chinese scholars neglected or mischaracterized the impact of law on China (p. 398)) (Xu Zhongming, Precedents, Stories and Judicial Culture of Ming Qing Dynasties, p. 11.) (Western jurists observed that there was no law in China because there was no protection for individual and human rights.) Ho Hua (ed.), The Transplantation and Indigenization of Law (Beijing: Falu Chubanshe, 2000). 36  Amartya Sen, Human Rights and Asian Values (New York: Carnegie Council on Ethics and International Affairs, 1997).

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It then details the nature and characteristics, content and application, theory and practice of QLF as a jurisprudential principle. Section IV (“Comparison”) compares and contrasts two jurisprudential traditions: rule of law vs. QLF. It observes that there are convergences between the two systems of thought; the rule of law regime makes allowance for extra-legal considerations, in the name of “equity” and “reasonableness.” Section V (“Assessment”) asks the central research question: Is the ICO—in substance and process—compatible with QLF? It observes that Legco failed in ascertaining the “zhenqing” before legislating and it failed to adopt indigenous “li” in drafting the ICO. Section VI (“Conclusion”) provides a brief summary of the findings of this research, i.e., that the ICO legislative process failed “qing” and that the ICO statutory content failed “li” of Hong Kong people and culture. I. Context The Historical Context; or is ICO Politically Justified? Colonial policy Hong Kong, as a colony (1842–1997), was governed as a police state,37 albeit in a paternalistic manner38 and minimalist way,39 by and through indirect rule: For all its lack of democracy, Hong Kong is a colony only in a technical sense, and though constitutionally its government could take the form of a dictatorship, in reality is does not. Constitutionally it is under the Crown, but it acts more like a semi-autonomous city-state, free since 1974 even from the financial controls that London once exercised over it. The colonial government—dominated at the top by British expatriates—decides its own internal affairs largely independently of Whitehall and in consultation with local conservative elites, pressure groups and business lobbies who are in frequent contact with the decision makers.40

37  Tsui Yiu-Kowng, “Problems of a Para-Military Police in Changing Society: A Case Study of The Royal Hong Kong Police Force,” Examination Paper, Chinese University of Hong Kong (1979). Tsui’s student paper remains the most authoritative study on the role of Hong Kong police as a para-military force, being responsive and accountable only to the Governor thought the Commissioner of Police, of the time. 38  G. Benton, The Hong Kong Crisis (London: Pluto, 1983). 39  Ian Scott, Political Change and the Crisis of Legitimacy in Hong Kong (Honolulu, HI: University of Hawai’i Press, 1989), p. 39. (From its inception until about 1966 (riot), British colonial policy in Hong Kong called for a minimalist state secured by imperial armed forces. The government was only concerned with maintaining law and order, e.g., fighting off pirates or eradicating Triad society.) 40  Ibid., pp. 30–31.

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The Governor of Hong Kong-led executive government held the balance of power41 over every aspect of social,42 economic43 and, above all else, political life.44 In colonial Hong Kong, there were few concerns with human rights and little debate over personal liberties.45 Political policing was taken for granted, e.g., the secretive Special Branch had unfettered powers to monitor political dissidents.46 Police abuse of powers was accepted as a fact of life, e.g., the zealous CID resorted to the third degree to facilitate criminal investigations.47 There is no accurate and reliable data on police abuse of power in Hong Kong. The government did not keep track. There was no independent watch dog. However, in 1984 The Law Reform Commission of Hong Kong collected some court case data on challenges to police confessions in the courts of Hong Kong. It found that coerced confessions were rampant and a major drain on judicial resources.48 An ongoing study by Janice Brabyn of the University of Hong Kong has revealed that 162 or 21% of 762 defendants in criminal cases handled by the Magistracy over a two-month period challenged confession evidence. In 74, 41  A. Grantham, From Hong Kong to Hong Kong (Hong Kong, 1967), p. 107 (“in a crown Colony, the Governor is next to the Almighty”). 42  The Colonial government of Hong Kong has adopted and legitimated Hong Kong customary practices by law, e.g., insulated village governance and separate marriage arrangements. M.B. Hooker, “The Relationship between Chinese Law and Common Law in Malaysia, Singapore, and Hong Kong,” The Journal of Asian Studies, 28(4) (1969): 723–42, 727–8. 43  The Colonial government of Hong Kong has adopted a positive non-intervention policy in Hong Kong. 44  The Colonial government of Hong Kong has maintained firm control over Hong Kong’s political development (or absence of development) and legal regime. 45  In the early years, Hong Kong people were subjected to summary arrest and punishment at the hands of the police. There were few effective ways to bring the unruly and transient Hong Kong population under control. See Christopher Munn, Anglo-China: Chinese People and British Rule in Hong Kong, 1841–1880 (Richmond, Surrey: Curzon, 2001), “Chapter 3: ‘Cheap, Summary, Sharp Justice’: The Early Hong Kong Magistrate,” pp. 109–60. (Between 1841 and 1870, about 170,000 man, women and child were brought before the magistrates for criminal violations. This amounted to 5–8 percent of the colony’s population.) It is not too farfetched to describe Hong Kong colonial rule as a reign of terror, especially in some quarters. See Munn, Anglo-China, “Chapter 7: ‘A Reign of Terror’: Corruption and Scandal, the Caldwell Affair: 1857–1861,” pp. 290–328. 46  Hualing Fu and Richard Cullen, “Political Policing in Hong Kong,” Hong Kong Law Journal, 33 (2003): 199. 47  The Law Reform Commission of Hong Kong Consultation Paper on the Procedure Governing the Admissibility of Confession Statements in Criminal Proceedings (July 2000), . 48  Law Reform Commission, “Confession Statements and their Admissibility in Criminal Proceedings” (1985). See http://www.hkreform.gov.hk/en/publications/radmissibility.htm.

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or 46% of those cases, the defendants alleged improper police behavior in obtaining confessions. 43 claimed that they had been assaulted by the police, 36 claimed that threats were made against them or family members in order to induce confession. Tellingly, the magistrate upheld the defendant’s challenge in 29, or 18% of the 162 cases in which confession evidence was at issue. Hong Kong’s rate of challenge to the admissibility of confessions and the rate at which such challenges are upheld is quite high compared to other jurisdictions. Many of the Monitor’s members are legal practitioners and have long believed that illegal or improper use of force in arrest and interrogation is routine. This is confirmed.49

In the past, there was very little police accountability.50 Before 1974 there was no legal complaint against police process.51 Until the formation of ICAC in 1974 there was no institutional check on police corruption.52 Laboring under such a political economy, there was little need for interception of communications and surveillance-related legal rules and administrative policies. Hong Kong Police powers were plenary when it came to investigating crime and providing for security. How can such apathy toward police abuse of powers be explained? Acceptance of colonial powers Culturally, legalism and constitutionalism were never dominant features of Chinese imperial governments.53 Confucian ethics—social status, hierarchical relationships and self-cultivation—guided the operations of society as a whole.54 Confucianism proposed the concentration of powers in sage officials and the imposition of duties on the common citizens. As a governing philosophy, Confucianism led inevitably 49  Human Rights Monitor, “Position Paper on Police Interrogation Practices and Complaints Procedures,” January 19, 1996, 09/11/95. CCPR/C/79/Add.57. 50  Byron Kong, “A Review of the Effectiveness of the Extent of Discretion Exercised by Police Officers of Hong Kong Police in Street Level,” MPA Dissertation, Hong Kong University (2003). (Case studies of police operations (Chapter 3) and personal interviews with HKP officers (Chapter 4) show that street police officers enjoyed wide discretion in Hong Kong, especially in minor cases, e.g., traffic cases.) 51  R.I. Mawby, Comparative Police Issues (London: Unwin Hyman, 1990), “Chapter 6: Hong Kong: Colonial Capitalism,” pp. 86–101; Jon Vagg, “The Legitimations of Policing in Hong Kong: A Non-Democratic Perspective,” in Otwin Marenin, ed., Police Change, Changing Police (New York and London: Garland, 1996), pp. 107–34. 52  Max J. Skidmore, “Promise and Peril in Combating Corruption: Hong Kong’s ICAC,” Annals of the American Academy of Political and Social Science, 547 (1996): 118–30. 53  Kam C. Wong, “Legalism and Constitutionalism in the People’s Republic of China,” International Journal of Criminal Justice Sciences, 1(2) (2006): 1–26. 54  Lau Siu-kai and Huan Hsin-chi. The Ethos of the Hong Kong Chinese (Hong Kong: Chinese University Press, 1986).

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to police abuse of powers,55 especially during the colonial policing days of old in Hong Kong.56 At heart, Hong Kong people are economic, not political animals. The colonial Hong Kong government wanted a vibrant commercial center with compliantsocialized subjects, not a democratic state, with politicized, contentious citizenry.57 Endacott observed that Hong Kong people cannot be bothered with politics.58 Political apathy in Hong Kong was strikingly illustrated in 1967 when, soon after the 1967 riots, only 26,000 (out of 300,000 eligible) people bothered to vote for elected Urban Council members.59 Political apathy reduces police accountability. What then accounted for renewed interest in police accountability, calling for the adoption of the ICO?60 Post-1997 police powers concerns In the run up to 1997, the departing British, under the leadership of Chris Patten,61 proceeded to democratize Hong Kong,62 both to leave a British legacy63 as well as to keep faith with the Hong Kong people. In the meantime, Hong Kong “belongers”64 55  Kam C. Wong, “Confucianization of the Law: A Study of Speech Crime Prosecution in China,” Murdoch University Electronic Journal of Law, 11(3) (September 2004). 56  Pu Fang Hou Sheng (Police state water boy), Hsiang-Kang Ming Tian (Hong Kong Famous Detectives) (Hong Kong: Ba Ling Publishing, n.d.) HV8263, A2P8; Kenneth W. Andrew, Diary of an Ex-Hong Kong Cop (Hong Kong: United Writers Publication, 1979); Lau Ka Fa, Behind the Police (Publication Holdings Limited, 1991). 57  Lo Shiu-hing, “Decolonization and Political Development in Hong Kong: Citizen Participation,” Asian Survey, 28(6) (1988): 613–29. 58  G.B. Endacott. Government and People in Hong Kong: 1841–1962 (Hong Kong: Hong Kong University Press, 1964), p. 244. 59  Richard Hughes, Borrowed Place, Borrowed Time (London: Andre Deutsch, 1968). 60  Institutionally, HKP is not the only law enforcement agency, it is, however, the most dominant and powerful one. Functionally, the HKP is the sole agency in charge of virtual criminality and political security, and has the need for extensive powers to intercept communication and conduct electronic surveillance routinely to police political terrorism. 61  Christopher Patten, East and West: China, Power and the Future of Asia (New York: Times Books, 1998). 62  Christopher Patten, “Governor of Hong Kong, Our Next Five Years: The Agenda for Hong Kong,” Address at the Opening of the 1992–93 Session of the Legislative Council (October 7, 1992). Stephen J. Yates, “Putting Democratization Back on Track in Hong Kong,” Backgrounder #1180, The Heritage Foundation, May 15, 1998. 63  Brian Hook, “British Views of the Legacy of the Colonial Administration of Hong Kong: A Preliminary Assessment,” The China Quarterly, 151 (1997): 553–66. (But for political development in China, the British government has long sought partial democratization of Hong Kong, in tune with the rising aspirations of an economically well off, educationally endowed and politically assertive middle class.) 64  See “Wishes of the Belongers Themselves,” in Joseph Cheng, “The Future of Hong Kong: A Hong Kong ‘Belonger’s’ View,” International Affairs, 58(3) (1982): 476– 88. (Hong Kong belongers recognized the inevitability of Chinese rule. All they demanded

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and domesticated political elites started to worry about the implications of reuniting with China,65 their mother land,66 especially about loss of freedom under the rule of the People’s Republic of China.67 As 1997 neared, the Hong Kong people became increasingly concerned with and vocal about police abuse of powers, perceived to be a harbinger of things to come.68 For example, in October 2000, the HKP arrested a number of university student representatives for failing to give notice as required by the Public Order Ordinance before demonstrating.69 This attracted public outcry ending in street protests. Second, on October 9, 1999, a 16-year-old Chinese national turned United States resident, Lin Qiaying, was arrested and subsequently jailed for three and a half months for using a forged passport while returning to the United States from Fouzhou through Hong Kong. She was arrested on account of her own induced or coerced confession. It turned out that her passport was valid. The community was up in arms. A local newspaper called the incident “bizarre” and a “travesty of justice.”70

is that their interests and welfare be taken care of, e.g., being able to maintain the same standard of living, with little change in lifestyle.) 65  Joseph S. Cheng, “The Future of Hong Kong: Surveys of the Hong Kong People’s Attitudes,” The Australian Journal of Chinese Affairs, 12 (1984): 113–42. A majority of the Hong Kong people liked to see Hong Kong ruled by the British. A telephone survey of 998 people sponsored by the Hong Kong Reform Club (March 4–13, 1983) showed that 70 percent desired to maintain the status quo and 15 percent wanted Hong Kong to become a trusted territory (p. 117). 66  Ibid. In another survey sponsored by the Hong Kong Observer, conducted between May 10 and June 11, 1982, 65 percent considered their roots in Hong Kong and only 33 percent considered themselves Hong Kong citizens, while 61 percent said that they are Chinese (p. 122). 67  S. Lee, “Public Think Police Abuse Power: Poll,” South China Morning Post, February 24, 2000, p. 5. 68  Raymond Chow, “A Nervous Hong Kong Remembers Tiananmen Square as China Rule Nears,” Associated Press, June 4, 1997. (A protester: “What we’re doing here is against the Communist Party. They won’t allow us to do this. That’s why many people are here this time, because it’s the last time.”) “Hong Kong Key to Chinese Democracy, Dissidents Tell Tiananmen Vigil,” Agence France Presse – English, June 4, 1998, 11:45 GMT (June 4 exiled dissident Wei Jingsheng spoke to the Hong Kong people: “If the people in Hong Kong can keep a firm hold on this small democratic field, it is essential to the process of democratisation of the whole of China.”) 69  Kam C. Wong, “What to Do with the Public Order Ordinance?” Unpublished paper. On file with the author. 70  Margaret Ng, “Time for a Confession,” South China Morning Post, February 18, 1999; Editorial, Hong Kong Standard, February 2, 2000; Kam C. Wong, “Imperfect Justice: A Reflection on the Lin Qiaying Case.” Unpublished paper. On file with author.

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Finally, public outcry against police brutality and abuse of power, calling for reform, found expression in repeated media reports, Legco questioning, and an HKP-sponsored public survey (see Table 6.1).71 Table 6.1

Values and Behavior of Officers

Performance Area Positive Neutral Negative Taking stand against corruption 35% 21% 18% Protecting others’ privacy 29% 17% 21 Respecting the rights of persons in custody 21% 19% 15% Source: Extracted from Public Opinion Survey, Hong Kong Police (November 1999) (Hong Kong University)

1997 privacy concerns In the run up to the 1997 transfer of sovereignty of Hong Kong from the British government to the PRC, privacy, as an aspect of human rights protection, became a matter of great concern. As detailed in Chapter 5 (in the section “Post-1997 Privacy Concerns”), the 1984 Joint Declaration provided that the rights and freedoms enjoyed by the people of Hong Kong would last for 50 years, to be secured by a Basic Law.72 Specifically, Article 3(5) of the Declaration addressed basic human rights, while Articles 29 and 30 of the Basic Law respectively dealt with the inviolability of people’s homes, premises and residences, and the freedom and privacy of their communications. Implementation of these rights required the introduction of democratic institutions and the establishment of a human rights regime, actions that were taken during the governership of Hong Kong’s final Governor, Chris Patten. In relation to communications, the Law Reform Commission, having examined some of the more salient privacy issues raised by electronic data interception, interference and theft, issued in December 1996 the “Report on Privacy: Regulating the Interception of Communications.”73 The 1996 Report addressed issues such 71  For media report, see “Rights Group: HK Police’s Power Abuses Worsened in 2011,” NTDTV. January 16, 2012. http://www.youtube.com/watch?v=5C_zLGwiGgw . For HKP survey, see Hong Kong Police, “Society ‘Highly Confident’ in the Force,” Offbeat, 674, March 1–21, 2000. 72  The Basic Law of Hong Kong was adopted on April 4, 1990 by the Seventh National People’s Congress of the People’s Republic of China at its Third Session. See Y. Ghai, Hong Kong’s New Constitutional Order: The Resumption of Chinese Sovereignty and the Basic Law (Hong Kong: Hong Kong University Press, 1997). 73  The terms referred to in the 1996 Report “Terms of References” are anchored within the report “Reform of the Law Relating to the Protection of Personal Data” and state: “The issues raised at items (a) and (b) in the terms of reference were addressed in the Law Reform Commission report on Reform of the Law relating to the Protection of Personal Data published in August 1994. Most of the recommendations of that report were adopted

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as the public’s concern for secure communications in areas such as banking and finance, the safeguarding of customer information and how a lack of security would adversely affect customer relations and business, as well as worries over the potential theft of proprietary information.74 Consequently, the 1996 Report also warned that development in the field of electronic communications would be hindered if service carriers did not address the public’s concerns. Thus the recognition of privacy as an issue, and in particular in relation to communications, was driven by many forces and advanced along a number of paths in the period leading up to and beyond the 1997 handover. Public awareness of privacy Privacy has never been a major concern of the Hong Kong people and the Hong Kong government. However, in 1999, two high-profile cases (discussed in more detail in Chapter 5 in the section “Public Awareness of Computer Crime and Privacy”) sensitized the Hong Kong public to emergent privacy issues, and the need for legal protection. The first of these, HKSAR v. Tsun Shui Lun [1999],75 involved events that took place in April 1998, when Tsun Shui Lun, a technical assistant to a radiologist at Queen Mary Hospital retrieved medical records of the Secretary of Justice. Having shared the records with his wife, friends and two local newspapers, Tsun, who claimed that the public had a right to know that the government had lied about the Secretary’s medical condition, was arrested and prosecuted under Section 161 (1) (C) of the Crime Ordinance (Cap 200). The case created a furor in Hong Kong over a number of issues including the public’s right to be made aware of such information, the ethics of patient privacy and, more broadly, computer security. The second case, which also caused an uproar76 followed events in November 1999, when a leading anti-government newspaper, Apple Daily, was searched by the Independent Commission Against Corruption (ICAC) in an investigation that led to the jailing of two police communications officers and one reporter. During the search, computers were seized and data bases searched for evidence. At the Court of Appeals the newspaper argued that the provisions of the Interpretation and General Clauses Ordinance for the search and seizure of journalistic materials were too broad, placing at risk the confidentiality of informants and jeopardizing the privacy of innocent third parties. These two high-profile cases, as milestones on the path towards the understanding of privacy issues, indicate that Hong Kong and the public at large with the enactment of the Personal Data (Privacy) Ordinance (Cap. 486) on 3 August 1995. This report deals mainly with item (d).” See 1996 Report, “Introduction,” paragraph 5. 74  See 1996 Report, “Introduction,” 10(c). 75  HKSAR v. Tsun Shui Lun – [1999] HKCFI 77; HCMA000723/1998, January 15, 1999. 76  “Hong Kong’s Media Face to Face with the Taiwan Factor,” Annual Report – Joint Report of the Hong Kong Journalists Association and Article 19 (July 2000).

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have become aware not only of privacy as a concept but of the various array of issues it raises. Summary Until recently in Hong Kong, public concerns about the abuse of police powers, though they existed, were effectively suppressed; being summarily denied and adroitly managed. Entrenched Chinese culture and established Hong Kong custom made people defer to government authority. As Endacott observed “there is also among the Chinese a tendency to political acquiescence, which stems from a Confucian respect for the official and which should not be mistaken for apathy.”77 Hong Kong people are also more law and order oriented. Professor Kuan Hsinchi has conducted survey research on legal culture in Hong Kong and found that Hong Kong people are more inclined to support the police in maintaining order at the expense of [maintaining] the rule of law.78 People’s relationship with government and their attitude to rights changed with the return of Hong Kong to China, and with the adoption of the Joint Declaration and publication of the Hong Kong Basic Law. While such changes are real, the direction, magnitude, distribution, strength, nuance, cause and effect of such changes in attitude, and behavior, pre- and post-1997, has yet to be conclusively determined. For example, 1997 affected different people differently. Hong Kong people are not monolithic in ethnic background, social status, economic standing, political orientation or education level. Their attitudes toward 1997 and by extension law enforcement vs. civil liberties issues are likely to be different, some drastically, e.g., mainland immigrants vs. Hong Kong “belongers,” businessmen vs. white collar workers. Thus one would expect a marked difference of opinion between the political elite and grassroots people, pre-1997 and now. The Hong Kong people’s social needs (stability and continuity) and political choices (civil liberties vs. public security) have to be determined systematically, and comprehensively, objectively and reliably.79 Without such data and knowledge, the need for and utility of the ICO is speculative at best, and wrongheaded, and/ or wrong, at worst.

77 Endacott, Government and People in Hong Kong: 1841–1962, p. 229. 78  Kuan Hsin-chi. “Support for the Rule of Law in Hong Kong,” Hong Kong Law Journal, 27(2) (1997): 1–19. 79  The democrats claimed, again without empirical data, that, they represent the interest of the majority of the people in Hong Kong. See Thomas E. Kellogg, “A Flawed Effort?,” para. 2, line 3.

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The Legal Context; or is ICO Legally Necessary? There is no definitive legislative history on ICO.80 “As a British colony, Hong Kong for much of its history did not enjoy particularly strong basic rights protection.”81 Hong Kong police powers HKP laws and power followed UK jurisprudential rules and legislative principles.82 In England, the central principle of police powers and restraints was articulated by Entick vs. Carrington (1765): [E]very official interference with individual liberty and security is unlawful unless justified by some existing and specific statutory or common law rule; any search of private property will similarly be a trespass and illegal unless some recognized lawful authority for it can be produced; in general, coercion should only be brought to bear on individuals and their property at the instance of regular judicial officers acting in accordance with established and known rule of law, and not be executive officers acting in their discretion; and finally it is law, whether common law or statute, and not a plea of public interest or an allegation of state necessity that will justify acts normally illegal.83

The powers of the HKP can be found in the Police Force Ordinance (Cap 232), Sections 50 to 59. The most frequently exercised of these powers are: Section 50: “Arrest, detention and bail of suspected persons and seizure of suspected property”; Section 51: “Person arrested to be delivered to custody of police officer in charge of police station”; Section 52: “Person arrested to be discharged on recognizance or brought before a magistrate”; Section 53: “Power of arrest”; Section 54: “Power to stop, detain and search”; and Section 55: “Power to stop, search and detain vessels, etc., or person suspected of conveying stolen property.” The Police Force Ordinances were supplemented by internal police organizational rules and standing orders of various commands, the most important of which is the Police General Order. The court has also played a role in policing the police when evidence has been found to be illegally obtained, e.g., adoption of judges rule.

80  See Submission from Hong Kong Human Rights Monitor on surveillance, Article 30 of the Basic Law and the right to privacy in Hong Kong [CB(2)259/05–06(01)] (Hong Kong law on electronic surveillance and attempts at reform (pp. 15–22). See also Leung Kwok Hung and Koo Sze Yiu vs. Chief Executive of the Hong Kong Special Administrative Region (HCAL 107/2005). 81  Ibid. Submission from Hong Kong Human Rights. 82  R. Wacks, Police Powers in Hong Kong: Problems and Prospect (Hong Kong: University of Hong Kong Faculty of Law, 1989). 83  (1827) 6 B & C 635.

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Close scrutiny of the Police Force Ordinance, Police General Order and judges rule uncovers no provisions for interception of communications or covert surveillance. In such cases, the HKP, like its colonial master, followed the common law. The common law knows no concept of privacy84 and allows police a free rein of authority, without constraint. The only other relevant Hong Kong ordinances in place are the Telecommunications Ordinance (1963)85 and the Postal Ordinance. S.33 of the Telecommunications Ordinance reads: Whenever he considers that the public interest so requires, the Chief Executive, or any public officer authorized in that behalf by the Chief Executive either generally or for any particular occasion, may order that any message or any class of messages brought for transmission by telecommunication shall not be transmitted or that any message or any class of messages brought for transmission, or transmitted or received or being transmitted, by telecommunication shall be intercepted or detained or disclosed to the Government or to the public officer specified in the order.

The ICO is based on recommendations contained in two privacy studies undertaken by the Hong Kong Law Reform Commission, namely: “Report on Privacy: Regulating the Interception of Communications” (December 1996) (hereinafter IR) and “Privacy: The Regulation of Covert Surveillance” (March 2006) (hereinafter SR). Specifically, IR (para. 3.45) observed that the Telecommunications Ordinance (Cap 106) did not give “an adequate indication of the circumstances in which, and the conditions on which, interceptions may be authorised” and offers scant protection for privacy and freedom of communication as required by Article 17 of the International Covenant on Civil and Political Rights (ICCPR).86 Both of the above Hong Kong Law Reform Commission reports are exclusively based on Western (US, UK, Australian) jurisprudence, e.g., “Report of the research study on regulation of interception of communications in overseas jurisdictions” [RP02/04–05] (March 1, 2005).87 Transferable experience was sought in the areas 84  G. Taylor, “Why is there no Common Law Right of Privacy?,” Monash University Law Review, 26 (2000): 235–74. 85  Hong Kong’s Telecommunications Ordinance (Cap 106) prohibits unauthorized interference with a telecommunication installation in order to intercept a message (s27). 86  See Article 14 of the Bill of Rights Ordinance (BORO) and the Basic Law (Article 39) which also requires “legal procedures” to sanction any interferences with such rights (Article 30). 87  Thomas Wong, “Report of the Research Study on Regulation of Interception of Communications in Overseas Jurisdictions,” Research and Library Services Division, Legislative Council Secretariat, [RP02/04–05] (March 1, 2005), .

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of: legal framework; warrant issuing authority; duration, termination and renewal of warrants; interception without warrant; internal safeguard measures; external safeguard mechanisms; limit of executive discretion in execution; legislative amendments post-9/11.88 The IR recommended making the illegal interception of communications a crime, and therefore making applying for a warrant for approval to intercept communications compulsory.89 Specifically, IR proposed making it a crime “intentionally to intercept or interfere with—(1) a telecommunication; (b) a sealed postal packet; (c) a transmission by radio on frequencies which are not licensed for broadcast ….”90 Legal interception can only be conducted with a warrant issued by a High Court judge based on a written application: (a) to prevent or detect serous crime; (b) to safeguard public security in respect of Hong Kong. In issuing a warrant, a judge must be satisfied that: (a) there is a reasonable suspicion that an individual has committed, is committing, or is about to commit a crime, or information is likely to be of substantial value in safeguarding Hong Kong public security; (b) there is reasonable belief that information relevant to an investigation will be obtained through interception; (c) information cannot be reasonably obtained in less intrusive ways.91 Judicial proceeding The origination and development of the ICO was facilitated by two seminal legal decisions in Hong Kong courts.92 The first case, R vs Lee Man-Tak and 3 others (DCCC 689 of 2004, April 22, 2005) challenged the constitutionality of ICAC covert surveillance. The second contested the legality of the Law Enforcement (Covert Surveillance Procedures) Order in setting forth a “legal process” to guide police covert surveillance. In R vs Lee Man-Tak and 3 others the judge held that evidence in the form of video recordings of meetings obtained by covert surveillance was obtained in breach of Article 30. However, he went on to admit the covert recordings into evidence on the basis that their admission did not cause unfairness to the defendants.93 88  Ibid., Executive Summary, para. (1). 89  See Appendix I: “The Law Reform Commission’s recommendations on regulating the interception of communications” to Background brief entitled “Regulation of Surveillance and the Interception of Communications” prepared by the Legislative Council Secretariat [CB(2)2431/04–05(01)] (August 15, 2005), . 90  Ibid., p. 1. 91  Ibid., p. 3. 92  For a brief but informative description of the legal history of the ICO up through the legal challenges and judicial proceedings, see Thomas E. Kellogg, “A Flawed Effort?” 93  An accompanying case was that of R v Shum Chiu and 5 others (DCCC 687 of 2004, July 5, 2005). In the Shum Chiu case, the court found the interception of conversations between the third defendant and his solicitor to be illegal, as against Basic Law 30 and

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On August 5, 2005, the Chief Executive of Hong Kong (CE) promulgated94 the Law Enforcement (Covert Surveillance Procedures) Order95 (Order)96 pursuant to Hong Kong Basic Law (BC)97 Article 48 (4),98 to come into operation at the beginning of August 6, 2005.99 The Order was made without first consulting the Executive Council, the Legislative Council100 of Hong Kong (Legco)101 and public at large.102 The Order provided explicit and specific guidelines for the lawyer–client relationship. The judge stayed the prosecution against the third defendant permanently. 94  The Order was made by the CE on July 31, 2005, and Gazetted on August 5, 2005. 95  Law Enforcement (Covert Surveillance Procedures) Order (執法 (秘密監察程 序) 命令) SS NO. 5 TO GAZETTE NO. 31/2005. EXECUTIVE ORDER. No. 1 of 2005, . For a brief overview, see Legislative Council Panel on Security Law Enforcement (Covert Surveillance Procedures) (August 5, 2005) Order LC Paper No. CB(2)2419/04–05(01). 96  The CE made clear the following: (1) The Order is a procedure rule, not substantive law. (2) The Order is there to restrict government powers not limit people’s rights. (3) The Order has nothing to do with BC30. “CE speaks on Law Enforcement (Covert Surveillance Procedures) Order,” HK Government Press Release, August 6, 2005. . The CE repeated the same message to allay fears. (1) The Order is there to “ensure that we have uniform, very carefully crafted procedures to ensure that the disciplined services when they carry out surveillance will do it according to the rules which I have set out … for internal discipline purposes …” (2) “Order is not a law in itself; it does not impose any criminal liabilities or any sanctions on ordinary citizens.” (3) It is an interim measure. “Transcript of Chief Executive’s Media Stand-up Session,” HK Government Press Release, August 11, 2005. . 97  Yash Ghai, Hong Kong’s New Constitutional Order: The Resumption of Chinese Sovereignty and the Basic Law, 2nd edition (Hong Kong: Hong Kong University Press, 1998). 98  BC 48 (4) provides: “The Chief Executive of the Hong Kong Special Administrative Region shall exercise the following powers and functions: (4) To decide on government policies and to issue executive orders,” Hong Kong – Constitution, (Visited March 18, 2012). 99  Section 1 (1) (2). Order. 100  Submission from Hong Kong Human Rights Monitor on surveillance, Article 30 of the Basic Law and the right to privacy in Hong Kong (October 2005) LC Paper No. CB(2)259/05–06(01), p. 2, lines 21–2, . 101  Ibid., p. 29. lines 25–7. (CE issued the Order three months after the Shum Chiu case. There was more than enough time to consult Legco.) Margaret Ng, “Daily Contemplation: With Tsang Yam Pui Permission”), Apple Daily – Commentary, August 16, 2005, . (Every citizen concedes that there is a need for secret surveillance in fighting crime. But most disagree that the CE should be the one who issued such an Order, and not through the legislative process.) 102  Ibid., p. 30, lines 1–2. For the CE’s rejoinder. “CE defends surveillance order,” Hong Kong – Law and Order, August 25, 2005, . (“I think it is right for the legal fraternity to challenge the things they are doubtful about … But one thing I cannot accept is that we have a hiatus here, that we have a doubt in the minds of law-enforcement agencies that they cannot carry out surveillance operation, which is part and parcel of keeping law and order in Hong Kong.”) 103  Hong Kong Bill of Rights Ordinance, September 1991, 30 I.L.M. 1330 (effective June 8, 1991) was based upon the ICCPR, an international human rights treaty, adopted by the UN General Assembly on December 16, 1966, that came into force on March 23, 1976. International Covenant on Economic, Social, and Cultural Rights, and International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), U.N. GAOR, Supp. No. 16, at 52, U.N. Doc. A/6316 (1966). 104  “Many Hong Kong Lawyers and Legal Scholars Criticize the Law Enforcement (Covert Surveillance Procedures) Order,” Radio Free Asia, August 8, 2005, . (RFA is not an independent news agency and might be biased in favor of US views.) 105  The Hong Kong Democratic Party conducted a random phone survey of 534 citizens on August 11–16, 2005, over the issue of regulation of secret surveillance: 48.7 percent agreed (25.5 percent disagreed) that the government should promulgate legislation to control the process of interception of communications and secret surveillance. 54.7 percent agreed that court authorization is necessary for secret surveillance. 9.4 percent was of the opinion that government should not listen to citizens’ phones under any circumstances. 48.8 percent thought that it is not appropriate for police and law enforcement to decide whether to conduct secret surveillance. (Electronic phone survey. Sample called: 18,476. Successfully connected: 11,344 (61.2 percent). Response rate: 534 (4.7 percent).) “Near 50% of Respondents Hope for Expeditious Legislation Regulating Law Enforcement Agencies’ Secret Surveillance Activities,” The Democratic Party – Research and Commentary, . “Survey Says Snooping Law Should Offer More Protection,” South China Morning Post, Monday, July 3, 2006. (In July 2006, the South China Morning Post surveyed 300 Hong Kong residents. Most respondents expressed concerns and were suspicion of the ICO. A full 72 percent of the respondents preferred the appointment of a “three-judges” commission to oversee wiretapping requests, rather than the Chief Executive.)

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In 2005 two Hong Kong prominent political activists106 challenged the Order as being unconstitutional in law and inadequate in content to safeguard citizens against arbitrary searches and intrusion of privacy. On February 6, 2006 the Hong Kong Court of Appeal107 found the Order to be inadequate in protecting privacy rights or fulfilling the BC 30 mandate.108 This prompted another round of debate in Legco109 and within the community of the need to pass a secret surveillance legislation to guide LEA activities and protect citizens’ rights.110 II. Rationale This chapter calls for (re)evaluating the ICO and (re)thinking privacy vs. security issues in a whole different way; from an indigenous point of view and with local (empirical) data; more simply the Hong Kong way. Why? First, Hong Kong legal culture, judicial thinking and legislative reasoning, has long been held captive by foreign (trained) jurists, Westernized politicians and progressive scholars. This fixation on Western ideas, liberal ideals and utopian ideology must be reflected upon and counterbalanced by a (more) local perspective that reflects traditional thinking and grounded sentiments.111 106  Daisann LcLane, “A Rebel in the Emperor’s Court,” New York Times Magazine, March 6, 2005. http://www.longhair.hk/pic/200502/nytimes.pdf. 107  Leung Kwok Hung and Koo Sze Yiu vs. Chief Executive of the Hong Kong Special Administrative Region (HCAL 107/2005). 108  “Surveillance Judgment Under Study,” Hong Kong – Law and Order, February 6, 2006, . “Hong Kong Court Rules Chief Executive Wiretap Measures Unconstitutional,” Forbes, February 9, 2006, 06:55. 109  Panel on Security: Special Meeting on Thursday, 16 February 2006, Agenda: Interception of Communications and Covert Surveillance. Paper for the Special Meeting of the Panel on Security on February 16, 2006. LC Paper No. LS35/05–06, . See Panel on Security: Special Meeting on Thursday, 2 March 2006, Agenda: Interception of Communications and Covert Surveillance, . 110  Paper provided by the Administration on “Impact of the Judgment Delivered by the Court of Final Appeal in LEUNG Kwok-hung and KOO Sze-yiu v. Chief Executive of the Hong Kong Special Administrative Region on Law Enforcement before the Enactment of the Interception of Communications and Surveillance Bill and the Preparatory Work Undertaken by the Administration for the Implementation of the Bill as Enacted,” [CB(2)2860/05–06(01)] (31 July 2006). 111  It has been observed that Confucianism is less a set of philosophical principles dealing with abstract moral issues of good vs. bad than a collection of conduct norms catering for concrete pragmatic problems of desirable vs. undesirable. For example, every person in China has a prescribed title (ming) and status (fen), and with it a role and functions

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Second, the British-Hong Kong Joint Declaration envisions an autonomous Hong Kong developing on its own terms, at its own pace, and more importantly, for its own good. The Hong Kong Basic Law in turns promises an independent and autonomous SAR, operated by and for the people of Hong Kong. Such a political settlement and constitutional regime requires the indigenization of Hong Kong law, i.e., giving Hong Kong people a voice, in theory as well as in practice, processes and results.112 The only issue confronting us is how to give meaning and effect to the indigenization of Hong Kong law. In material terms, how does the ICO reflect and reinforce indigenous values and local culture? A Controversial Legislation The ICO is the first successful attempt to regulate the interception of citizens’ private communications by public officials.113 It also represents the first time the government assertively championed and aggressively orchestrated the passage of a Bill.114 On July 31, 2006, the Chief Executive of Hong Kong, Donald Tsang, sent pro-government lawmakers a letter stressing the importance of their votes: “In view of the immense public interests at stake, it is of the utmost importance that we must muster sufficient support in defense of the administration’s proposals and avoid any disruption of the proceedings.”115

because people’s desires know no bounds, and would run amok if not properly delimited in advance. 112  The are two interesting philosophical questions that deserve pondering and await elaboration: (1) What does “autonomy” mean? Does “autonomy” mean total and complete isolation from external influence(s)? Or, does it mean selective exercise of “autonomy,” i.e., incorporation of foreign ideas if and when deemed appropriate, including abdication of “autonomy,” with intent or by default? (2) If “autonomy” does not preclude external influence, in what way can it be said that the “domestication” of foreign ideas transforms such ideas into “domestic” ones? 113  On the eve of 1997, Legco passed a private Bill – Interception of Communication Ordinance proposed by To Kun-sun (Democratic Party) – Jonathan Cheng, “10-Year Quest for Spy Bill Spins Bitter Tales of Trickery,” Standard, Monday, July 3, 2006. 114  “Absolutely Assuring the Passage of Interception Communication (Bill), Officials Set Up Defense in Legco,” Ming Bao, August 3, 2006, p. A12. (There were more government AOs (Administrative Officers) than reporters and security officers. They were deployed in the Legco building to assure that Legco members voted, in favor of the Bill.) Jonathan Cheng, “Lawmakers on 5-Days Sprint to Pass Surveillance Laws.” The Standard, August 3, 2006. 115  Ibid., Cheng.

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The original Interception of Communication Ordinance (1997), then116 as now, was a controversial piece of legislation.117 In response to the first ICO in 1997, Secretary for Security Peter Lai Hing-ling objected to the law in content and process: We find that the bill … would pose serious operational difficulties to our law enforcement agencies … The implementation of the bill would be prejudicial to the security of Hong Kong and would bring no benefit other than to criminals who will benefit from its flaws … Mr James To’s members’ bill, drawn up without prior consultation with the law enforcement agencies, is entirely unworkable and the administration will not be able to bring it into operation ….118

With the new ICO (2006), there is a legitimate concern with the legislative process—e.g., government officers shadowing legislators—and continued partisan disputations over the content—e.g., ICO fails to define national security. There are unsettled and unsettling questions being raised as to the magnitude, pervasiveness and seriousness of police surveillance and interception in Hong Kong, before and after ICO.119 In terms of the legislative process, Martin Lee (Democratic Party) accused the government of rushing the legislative process to meet the August 8, 2006 deadline, after failing to act on the matter for years. The Hong Kong government and “pro-emperor party” were taken to task for being interested only in securing votes, not winning hearts and minds. To many people, especially the public, the 116  “To’s Bill Faced Different Deadline: The Handover,” Standard, Tuesday, August 1, 2006. (Legco member Emily Lau (Frontier) accused then Governor Chris Patten of a breach of faith and deliberate delay. Ip Kwok-him DAB (Democratic Alliance for the Betterment of Hong Kong) recognized the importance of the law for law enforcement officials but lamented the fact that DAB was not properly consulted. He was against “hasty passage of the bill at this stage.” Selina Chow Liang Shuk-yee (Liberal Party) felt that the law was an important one in protecting human rights but nevertheless abstained from voting. 117  Cheng, “Snooping Law Set for Debut.” (The CE of Hong Kong, Donald Tsang described the ICO as one that is “rich in controversy.”) For a list of concerns being raised by HK Legco members, see “Summary of Concerns and Queries Raised by Members at the Special Meetings on 15 August and 4 October 2005 Prepared by the Legislative Council Secretariat.” [CB(2)971/05–06(02)] (February 7, 2006). 118  “To’s Bill Faced Different Deadline: The Handover,” Standard. 119  On February 21, 2006, the Legco Security Panel asked for data on police surveillance which had not been maintained thus far. On June 9, 2006, the Secretary for Security responded: From February 20 to May 19, 2007 there were (ICO) kinds of interception and 238 covert surveillances (44 requiring judges’ authorization). Administration’s letter dated June 9, 2006 regarding the number of cases of interception of communications and covert surveillance for the three-month period up to May 19, 2006. Secretary for Security, HKSAR, CB(2)2361/05–06(01) (English Version).

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marathon Legco session—August 2, 2006 from 11 a.m. to 10 p.m., August 3 from 9 a.m. to 12 midnight, August 4 from 9 a.m. to 12 midnight, August 5 from 9 a.m. to 2.26 a.m.—was entirely unnecessary. The “rush” was not conducive to good decision making.120 Audrey Eu (Civic Party) pointed out that it was odd that the pro-government Legco members accused her and others of prolonging the debate and delaying the promulgation of the ICO when in fact it was the government that refused to sign off on the original ICO passed by the Legco in June 24, 1997, almost ten years earlier. Since then, the government has relied on departmental regulations and executive orders to regulate the police. This showed gross disrespect for the rule of law and substantial erosion of the Legco as a functional institution in safeguarding citizens’ rights and controlling government actions.121 In terms of content, Emily Lau (Frontier) was greatly concerned with a failure to define key terms in the ICO, e.g., the lack of definition for “public security” and the difficulty in defining “reasonable privacy.” She also echoed the HK Journalists Association’s concern that the ICO might dry up news sources.122 Audrey Eu pointed out that although the Legco met for 58 hours, there was no substantive discussion and meaningful debate over the issues that should be discussed. In terms of practice, Audrey Eu was worried about the possible abusive use of the ICO to monitor political dissidents by a pro-Beijing government, just as Tsang Yuk Sing had years ago been concerned about the abusive use of the Special Branch of the HKP under British colonial rule.123 Eu’s concern was supported by a commentator who observed that Tsang Yuk Sing (Democratic Alliance for the Betterment of Hong Kong—DAB) was being shadowed by the HKP Special Branch not because of any criminal wrongdoing, alleged or proven, but because of unspecific and speculative fear regarding his political conviction, i.e., being a communist.124 Throughout the legislative process, the necessity and appropriateness of the ICO was taken for granted. The debate centered on how best to protect the rights of the people. There was virtually no discussion of how to evaluate the necessity, appropriateness and utility of the ICO from a Chinese-Hong Kong perspective. For Whom the Bell Tolls A need exists to revisit Western jurisprudential principles on human rights and privacy, which are claimed to be absolute and universal, through critical theoretical

120  Martin Lee, “Fast Knife in Cutting Hem,” Ming Bao, August 8, 2006, p. D4. 121  Ng Chi Sum, “Tsang Yu Shing is not a Robber,” Ming Bao, August 8, 2006, p. A28. 122  Emily Lau, “An Invasion of Privacy,” SCMP, August 8, 2004, p. A11. 123  Audrey Eu, “Truly Sad! Legislative Council,” Ming Bao, August 8, 2006, p. A28. 124  It is most ironic that in spite of Tsang’s experience with Hong Kong government illegal surveillance, he became a key supporter of the ICO.

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examination and objective empirical validation.125 In context and as applied, are Western concepts of rights, freedom and democracy fit for Hong Kong?126 The central thesis here is that Western jurisprudential principles should not be applied to Hong Kong automatically and unreflectively, still less adhered to universally and absolutely. Hong Kong legislators and courts should honor their constitutional duties by developing ICO jurisprudence that best fits Hong Kong’s history and culture, and realizes Hong Kong people’s interest and welfare, needs and wants, sense and sensibility, dreams and aspirations, i.e., in its totality an ICO that is “good” for Hong Kong. Human rights activists and democracy champions from the West talk about the importance of human rights, freedom and democracy as universal and fundamental moral principles.127 However, many people from around the world have argued that human rights while important and deserving of our attention, should not remain our exclusive, or even dominant, concern.128 In our debate over human values, we also need to think about cultural exchange, and not simply impose the values of one nation/people/culture on other autonomous individuals or sovereign nations.129 To begin the debate, we need to observe that there are many values worthy of human pursuit, e.g., freedom from starvation, personal integrity, filial piety, social responsibility and loyalty to one’s country.130 In this regard, there are four observations to be made. First, it is obviously true that not all values are created equal. For example, material goods pale alongside moral and spiritual 125  Orlando Patterson, Freedom in the Making of Western Culture (New York: Basic Books, 1991). (The idea and ideal of freedom is not naturally derived but socially constructed. It is the existence and perpetuation of freedom in the West which requires explanation and not the lack thereof in non-Western countries that should be justified. “Preface.”) 126  My arguments here, independently arrived at, follow Bell’s arguments. Daniel Bell, “Which Rights are Universal?,” Political Theory, 27(6) (1999): 849–56. 127  Randall Peerenboom, “Human Rights and Asian Values: The Limits of Universalism,” China Review International, 7(2000): 295–320; Joanne R. Bauer and Daniel A. Bell, eds, The East Asian Challenge for Human Rights (Cambridge: Cambridge University Press, 1999). 128  China championed negative rights, e.g., right to be free of hunger and exploitation while Singapore promoted Asian values. 129  This calls to mind President Bush’s insistence that only the American conception of freedom and democracy is worth fighting for. “Freedom fighters” from other nations are ipso facto seen as terrorists. 130  “Not so (respect for life as universal). In the classical Chinese tradition in which I was brought up, we are taught to have respect for parents, respect for teachers, respect for ancestors and for duly constituted authority, but the conception of respect due to the individual human beings as such does not exist in that culture.” Basil Mitchell, “The Value of Human Life,” in Peter Byrne, Medicine, Medical Ethics and the Value of Life (New York: Wiley, 1990), pp. 34–47.

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ones. Second, it is also clear that no single value, moral principles included, is so fundamental as to absolutely overshadow all others at all times, in all places and in all situations. Even the taking of innocent human lives can at times be justified in the name of stopping a greater evil. Third, judging values in context goes well beyond merely determining which moral principles should apply in a given decision-making frame. Many values are involved. Most of them are in conflict and priorities must be set. The challenge is, given a set of ranked values, national priorities and limited resources, prioritizing.131 Fourth, the ranking of values in the abstract is so loaded with conditions and disclaimers as to be of little use when applied to real-life situations. Indeed, they might create problems even in a theoretical multi-value matrix decision-making set. Should I kill one to save the lives of many or possibly to improve the welfare of all?132 If not, then what right do we have, as a civilized government, to build a highway which, after all, kills? Are traffic fatalities not victims of a government’s conscious policy choice, to develop highways instead of airports? Do we not call them casualties of human progress? The complexities and difficulties in arriving at agreed values are best described thus: Second: there is no shared set of value priorities. We make much of the fact that we share values and we frequently say that, well, basically humans want the same things so we ought to be able to work things out. Perhaps, at a survival level, but beyond that, and even there, there is not a shared set of priorities with regard to values. Instead, priorities change with circumstance, time, and group. Here are some examples where value priorities differ depending on the group and circumstance. Short term expedience versus long term prudent behavior and vice versa. Group identity versus individual identity. Individual responsibility versus societal responsibility. Freedom vs equality. Local claims versus larger claims for commitment. Universal rights versus local rights (that can repudiate universal rights; fundamentalisms, for example.) Human rights versus national interests (e.g., economic competition or nationalist terrorism). Public interest versus privacy (the encryption conflict, health information, whether private or not). First amendment limits (pornography, etc.). Seeking new knowledge and its potential benefits vs its potential costs. Who sets the rules of the game and who decides? These are all issues where the priority of values are in contention.

131  However, in Buddhist thought the principle of respect for life must be understood within the context and confine of other aspects of Buddhist teaching as well as other precepts. Different traditions within Buddhism balance the concern for respect for life with concern for taking the “most compassionate action.” W.M. Kevin and S.A. Wildes, “Sanctity of Life: A Study in Ambiguity and Confusion,” in Kazumasa Hoshino, ed., Japanese and Western Bioethics (Dordrecht: Kluwer, 1997), pp. 89–101. 132  Lon Fuller, “The Case of the Speluncean Explorers,” Harvard Law Review, 62(4) (February 1949): 616–45.

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The above is not an argument for value relativity, nor a proposition for situational ethics. It is a proposition for value pluralism.134 Value pluralism simply means that there are many more human values which give meaning to life and happiness to people than the principles of justice, freedom, equality and democracy. Put another way, a country can hold other enduring values—love for family, loyalty to friends, duty to society—and still deserve our admiration and respect. A benevolent dictator is better to many than starvation and chaos. Human rights advocates argue that human rights are so fundamental that all other values pale in comparison. While this argument has surface appeal and is emotionally satisfying, a moment of critical reflection shows that this does not conform to our understanding of how human values are formed, adopted and evolved. First, human rights advocates deem it “self-evident” that human rights— life, liberty and the pursuit of happiness135—are fundamental in nature, universal in application and apparent to all. All human beings should and must subscribe to the same set of human rights values—in content, importance and, when compared with other values, priority. There are no exceptions or deviations. Nothing could be further from the truth. Human values, as with beauty, are in the eyes of the beholder. Likewise, there are many ways to discover human values; as many as there are individuals on this earth.

133  Donald N. Michael, “Point: Observations Regarding a Missing Elephant,” (1998), . 134  Tom L. Beauchamp, “Comparative Studies: Japan and America,” in Kazumasa Hoshino, ed., Japanese and Western Bioethics (Dordrecht: Kluwer, 1997), pp. 25–47. I came to my observation here—similar values but differentially ranked (individually and in conjunction with others) and variously applied (taking up contextual importance)—quiet independent of Beauchamp’s work. But Beuachamp’s work—narrow morality (universal principles) and broad morality (differential application)—shares one thing in common with mine, i.e., “the principles upon which men reason in morals are always the same; though the conclusions which they draw are different” (ibid., p. 27). For a discussion of moral objectivism and indeterminacy, see Russ Shafer-Landau, “Ethical Disagreement, Ethical Objectivism and Moral Indeterminacy,” Phil. and Phenomenological Res., 51 (1994): 331– 44, . 135  The Declaration of Independence, para.1 (US 1776).

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On a theoretical plane, Kant’s categorical imperatives136 or Bentham’s utilitarianism137 are good starting points in order for one to discover individual or social values, but these are not final. Ontological and teleological validation of value choices are not exhaustive. In more practical terms, rational analysis and positive thinking are not the only, nor even the best tools to determine the contour and correctness of human values. Indeed, I venture to guess rational analysis is ill-suited to the investigation of value matters which are, after all, more instinctual than cognitive, and more emotive than logical. We love humanity with our heart, and appreciate life with our soul, not with a computer and a brain. In the end, spiritual enlightenment, personal feelings, human experience and collective wisdom can all play a part in one’s endless value search. Second, human rights belong to each and every individual, and are not monopolized by one ideological camp. Most certainly, values, of which human rights are an integral part, are not beholden to the intellectually bright, militarily strong, economically wealthy or culturally rich. As nations, as communities, as families and as individuals, we all subscribe to a set of values. Each of us is equally capable of finding a set of values suited to our taste. All of us are equally endowed as moral agents. It is apparent that no one country—no matter how big, how strong, how rich and how enlightened—can monopolize the creation of desirable values, much less be the net exporter of virtues.138 136  Immanuel Kant, Groundwork of the Metaphysic of Morals, trans. J.K. Patton (New York: Harper Perennial, 1965). (“Act only according to that maxim by which you can at the same time will that it would become a universal law.”). Kant made this observation when applying his categorical imperative to suicide: “If a man is reduced to despair by a series of misfortunes and feels wearied of life, but is still so far in possession of his reason that he can ask himself whether it would not be contrary to his duty to himself to take his own life, he should ask himself a question. He should inquire whether the maxim of his action could become a universal law of nature. His maxim is: From self-love I adopt it as a principle to shorten my life when its longer duration is likely to bring more evil than satisfaction. It is asked then simply whether this principle founded on self-love can become a universal law of nature. Now we see at once that a system of nature of which it should be a law to destroy life by means of the very feeling whose special nature it is to impel to the improvement of life would contradict itself, and therefore could not exist as a system of nature; hence the maxim cannot possibly exist as a universal law of nature, and consequently would be wholly inconsistent with the supreme principle of all duty.” 137  “By the principle of utility is meant that principle which approves or disapproves of every action whatsoever, according to the tendency which it appears to have to augment or diminish the happiness of the party whose interest is in question: or, what is the same thing in other words, to promote or to oppose that happiness.” Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (Kitchener: Batoche Books, 2000 [1781]), p. 14. 138  See M. Angell, “Ethical Imperialism?,” New. Eng. J. Med., 319 (1988): 1081–3 (universal values cannot be compromised without compromising morality itself); see also C.B. Ijsselmuiden and R.R. Faden, New. Eng. J. Med., 326 (1991): 830–34 (moral judgment

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Third, national values, as with one’s moral compass, do not come prepackaged. They are a combined and integrated product of personal make-up, cultural heritage, social consensus, economic circumstances and even accidental events. In sum, values are a sum total of human existence; wants, needs, phobias, memories, dreams and hopes. Once formed, they are a given fact of nationhood and are seldom right or wrong in the abstract or in total. Fourth, values are formed experientially, experimentally, naturally and incrementally, more so than cognitively, absolutely, positively and dramatically. Historical accidents and national happenstance have as much to do with a country’s value formation as do rational discourse and reflective policy. Much of the values Americans take for granted are rooted in the manner by which the United States found liberation, independence and individuality as a result of rebellion against British rule. Conversely, the Chinese people have sought refuge in paternalism and collectivity because of their historical embracing of the teachings of Confucius. Given this “dynamic” and “dialectical” process of human value formation, it should come as no surprise to anyone to learn that human values never stop growing and evolving, changing in content and mix every minute and hour of the day. “We get wiser as we grow older” is as much a descriptive statement as it is an admonition to the young who are eager to live all that life has to offer in one day. Viewed in this light, the search for human values is not a discovery process but a creative journey. An individual, a people, a community, a nation-state—all are searching for an elusive and transient identity, but never arrive at an ultimate destiny. It is the process of searching for, and not the ultimate finding of, human values, which gives meaning to life. Lastly and most significantly, values are bound by time and space, and posited within certain places and societies. Two very important observations flow from this postulate. First, values exist within a context of history, place, people, society and culture. There is no ahistorical, asocial or acultural value. To appreciate why Chinese rulers, and, for that matter, many Asian leaders, adopt a paternalistic attitude toward their subjects, it is necessary to consider the importance and structure of the family within Chinese history and culture. A critique of the Chinese style of government is not just an attack on Chinese current leaders but also an indictment of China’s cultural heritage in general, and the role and functions of family in particular. With so much at stake, and such complexities involved, a country passing judgment on others should be more reflective, thoughtful and considerate. It is easy to be misinformed and to misjudge. Second, values are bundled goods. The meaning and importance of a value cannot be easily extracted from the collective of values of which it forms an integral part. The surgical removal and strategic implantation of values will certainly cause political disruption, such as the wholesale abandonment of communism in the

differs not because the value principles are not morally justifiable but that they are factually inapplicable in context).

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USSR, which led to social unrest and political chaos,139 and social rejection, such as the ban on US-style adversarial journalism in Singapore.140 It is most difficult, if not impossible, for a person or country to transcend its intellectual horizon and value space. Cultural myopia is the norm. China calls herself “Central Kingdom” and still acts that way. Intellectual provincialism is the rule. All rationality is bounded. Marx’s critique of the capitalistic intellectual order, that the consciousness of the masses is conditioned, controlled and dominated by ideas emanating from the economic base,141 is flawed, less so because it is an overly broad observation than because it is not carried far enough. Marx failed to explain convincingly why he could liberate himself from such an all-embracing ideological confine to lead the charge against capitalism, while others could not. Rawls’ Theory of Justice142 was hindered by a similar cultural straightjacket: the just society behind “the veil of ignorance” envisioned by Rawls looked more like twentieth-century Boston than traditional Indonesia or contemporary Japan. Is it surprising to see first the Romans, then the British and now the Americans preaching the virtues of their culture to the rest of the world; through persuasion if possible (BBC, VOA, CNN) and by force (extra-territoriality, Vietnam, Iraq) if necessary? Echoing Huffington,143 does it not appear odd that it took the British a few hundred years to discover the essence of civilization while the Egyptians are still at a loss after 6,000 years? Is it possible that the Americans could find the best in government in 200 years while the Chinese keep missing it after 4,000 years? The discovery of universal values has more to do with individual ego and national pride than any intrinsic merit associated with those values. The successful spread of values, from democracy to gay rights, reflects more upon a country’s economic strength and concomitant cultural domination, than on any inherent appeal and demonstrated goodness of certain moral principles. Is it surprising that almost all participants of international conferences speak English, most with a US accent, and wear ties and jackets? Cultural domination, albeit in subtle form, is here to stay. Singapore’s senior statesman was right when

139  Stephen E. Hanson, “Reform and Revolution in the Late Soviet Context,” Slavic Review, 63 (2004): 527. 140  Douglas Sikorski, “Effective Government in Singapore: Perspective of a Concerned American,” Asian Survey, 36(8) (1996): 818, 820. 141  Raymond Williams, “Base and Superstructure in Marxist Cultural Theory,” in Chandra Mukerji and Michael Schudson, eds, Rethinking Popular Culture: Contemporary Perspectives in Cultural Studies (Berkeley, CA: University of California Press, 1984), p. 407–23. 142  John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971). 143  Samuel P. Huntington, The Clash of Civilizations and the Remaking of World Order (New York: Simon & Schuster, 1996).

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he said that Asian values are as worthy of respect—because those values tell Asians who they are.144 Intellectual Provincialism Western studies of Chinese law and law enforcement have been afflicted with ethnocentrism and cultural ignorance; knowing too much (of oneself) and too little (of others) at the same time. For example, Michael R. Dutton wrote one of the only full-length books 145 on Chinese policing.146 The central question Dutton posed for himself and his readers was: How does the traditional technology of policing fuse with the present social control framework?147 He observed that the PRC’s household registration system now is an extension, reproduction and sublimation of past practices, rather than a brand new invention. Specifically, China’s present control method is a “remnant” of feudal past practices, albeit serving different governance purposes.148 In terms of method, Dutton employed Michel Foucault’s “genealogical method” to construct “histories of the present.” In the main, Dutton relied on secondary English materials to complete his study. In terms of theory, Dutton borrowed Foucault’s theoretical insight149 to analyze China’s household registration regime, past and present, concluding that Chinese state control has moved away from inflicting pain on the body to marking personal files. In this regard, Dutton observed that China is the first nation to use statistical records effectively to track and keep its people in place. According to Dutton, in imperial China, the state controlled a person’s behavior by anchoring the person within an intricate web of relationships starting with the family. Individuals were kept in place by critical self-introspection, stern family discipline and ubiquitous community surveillance. In contemporary China, the state regulates people with a comprehensive household registration system: [W]e may now see a regime which centers on work and production rather than on family and Confucian ethics, but the form of its policing, the modes of its

144  Anthony Milner, “What’s Happened to Asian Values?,” Australian National University, .Visited March 19, 2012. 145  Frederic, Jr. Wakeman’s seminal book, Policing Shanghai, 1927–1937 (Berkeley, CA: University of California Press; reprint edition 1996) covers only a short 10 years of Chinese history. 146  Michael R. Dutton, Policing and Punishment in China: From Patriarchy to “the People” ( Cambridge: Cambridge University Press, 1992). 147  Ibid., pp. 5–6. 148  Ibid., p. 6. 149  Michel Foucault, Discipline and Punish: The Birth of the Prison (Harmondsworth: Peregrine Books, 1979).

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regulation and the way it constitutes its disciplinary subjects all have resonance in the past.150

As a critique,151 Dutton’s book, notwithstanding the inviting title, bold assertions and erudite presentation, tells us more about social regulation than law enforcement, more about administrative regiment than policing strategy, and finally, more about Dutton’s observation of China as an administrative state than what people in China think, feel, experience and understand policing to be. Radcliffe-Brown has cautioned against such Western cultural imposition, sold as sociological imagination:152 In the primitive societies that are studied by social anthropology there are no historical records … Anthropologists, thinking of their study as a kind of historical study, fall back on conjecture and imagination, and invent “pseudohistorical” or “pseudo-casual” explanations.153

In essence where Dutton discovered clear and conclusive archeological evidence of historical continuity in a disciplinary state, Chinese found coincidental confluences of people, events and circumstances vying for influence over the individual. Where Dutton privileged a grand design to explain state governance, the Chinese people favored human nature (“renxin”)154 and heavenly providence (“tianming”)155 to justify individual obedience. Thus observed, Dutton’s “theory of policing” is irrelevant to Chinese’s understanding of their personal conditions and collective fate.156 On a still larger intellectual compass, Westerners go about constructing the history of China out of a whole cloth and in accordance with a 150 Dutton, Policing and Punishment in China, p. 5. 151  For other critical reviews of Dutton’s work, see “Reviewer Borge Bakken: Policing and Punishment in China: From Patriarchy to ‘The People’ by Michael R. Dutton,” The Australian Journal of Chinese Affairs, 31 (1994): 121–3. “Reviewer Arif Dirlik: Policing and Punishment in China: From Patriarchy to ‘the People’ by Michael R. Dutton,” The American Journal of Sociology, 99(4) (1994): 1145–7. 152  C. Wright Mills, The Sociological Imagination (New York: Oxford University Press, 1959 [1976]). (Sociological imagination allows us to see mundane social facts in a different light.) 153  A.R. Radcliffe-Brown, Structure and Function in Primitive Society: Essays and Addresses (London: Cohen and West, 1952), p. 3. 154  Homer H. Dubs, “‘Nature’ in the Teaching of Confucius,” Journal of the American Oriental Society, 50 (1930): 233–7. 155  Tao-Wei Hu, “The Chinese Version of the Law of Nature,” International Journal of Ethics, 38(1) (1927): 27–43. 156  This shifts the intellectual debate from what counts as a sound theory (i.e., validity issues) and is accepted as good evidence (i.e., reliability problems) to what matters (i.e., policy concerns) and to whom (i.e., political consideration). The debate further implicates paradigmatic issues of positivism vs. post modernism.

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grand scheme of things, while Chinese people continue to weave their life course clothing one stitch at a time and in step with the particulars of the “way” (“dao”) of life.157 If we find Dutton’s approach to China police studies wanting—sterile and irrelevant—how might we improve the studying and understanding of Chinese (Hong Kong) law? To this central issue we now turn. Hong Kong Law with Chinese Characteristics Study of Chinese (Hong Kong) law should avoid cultural (pre-)disposition, as informed by received/hidden assumptions,158 driven by self-evident/universal 157  This line of critique finds empirical support in Chinese law and society research. Theoretically, it has been observed that law in action is mediated by powerful social actors as driven by a convergence of social and cultural forces. In “The Practice of Law as an Obstacle to Justice: Chinese Lawyers at Work,” Law & Society Review, 40 (2006): 1–38, researcher Ethan Michelson found that legal justice in China was subjected to and subverted by the lawyers who acted as gatekeepers to law and justice. Accessibility to the legal system of clients was dictated by professional interests (i.e., who can paid) and circumscribed by cultural values (i.e., who is deserving of help). Empirically, He, Xin found in “Why Do they not Comply with the Law? Illegality and Semi-Legality among Rural-Urban Migrant Entrepreneurs in Beijing,” Law & Society Review, 39(3) (2005): 527–62 that in practice the “hukou” system did not comport with the administrators’ design or people’s expectations. Ultimately, the “hukou” system did not serve to “discipline” the migrant’s (as intimated by Dutton) but was negotiated by all those who were affected by it (police, migrants, business) to serve their respective institutional or personal interests. 158  Harry Harding, “From China, with Disdain: New Trends in the Study of China,” Asian Survey (AS), 22(10) (1982): 934–58. (Established China scholars have observed that different perceptions and misperceptions of China have more to do with the investigators’ disposition or disciplinary paradigm toward China than reflecting true conditions and likely prospects of China reform. Sentiments about China ran from torrid love affairs born of romantic attachment, if not involvement with Mao’s egalitarian and utopian quest, c. 1970s (p. 936) to bitter resentment resulting from abject disappointment over China’s oppressive policy and repressive practices, c. 1980 (p. 936). The reassessment resulted in part from “Changing Intellectual Assumptions” (p. 942): (1) The prevailing assumptions in the 1970s were that we have no right (at least not being fair) to judge China by Western standards or values, such as over freedom and human rights issues (p. 943). (2) Economically, Chinese people are less developed and thus care more about economic survival than liberty. Culturally, Chinese people have no history and tradition of democracy, privacy and individualism. As such these rights mean very little in China. (3) In the 1970s we often judged China by the lofty goals espoused by the leaders and not their actual implementation or eventual successes/failures at the grassroots (p. 944). By far the most established assumption shared by many who engaged in state and society research in China is the idea that there is a connection between economic development and demands for political liberation. Elizabeth J. Perry, “Trends in the Study of Chinese Politics: State-Society Relations,” China Quarterly (CQ), 139 (1994): 704–13.

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political orientation159 and fortified with embraced ignorance.160 Taking this admonition to heart, we find that few if any existing social, criminological or jurisprudential theories, mostly developed in the West,161 can be easily made to fit China’s (hong Kong) particularistic cultural pattern, multifaceted social conditions and complex political circumstances162 without suffering from various minor inaccuracies163 and/or gross distortions.164 More significantly, there is not 159  For a trenchant critique of post-modernist scholarship in rescuing Chinese scholars from the pitfall of a liberal critique of China, see Joseph W. Esherick, “Cherishing Sources from Afar,” Modern China (MC), 24(2) (1998): 135–61. (James L. Hevia’s Cherishing Men from Afar (Durham, NC: Duke University Press, 1995) provided a revisionist reading of China. His observations of China were based on mis-translation of primary sources and misinterpretation of secondary historical data, all the time being driven by personal bias and political ideology. See “Methodology and the Politics of Post-Colonial Scholarship,” pp. 153–9). 160  Chinese legal scholars have adopted the view that China has no or a nonfunctioning legal system when there is ample evidence suggesting otherwise, e.g., the Qing dynasty has a sophisticated legal code and effective justice administration system. Alford, “Law, Law, What Law?” 161  See Gregory J. Howard, Graeme Newman and William Alex Pridemore, “Theory, Method, and Data in Comparative Criminology,” in David Duffee, ed., Criminal Justice 2000: Measurement and Analysis of Crime, Vol. 4 (Washington DC: National Institute of Justice, 2000), pp. 139–211, . (The goal of comparative criminology is to test theory, assess policy, coordinate policy. Grand and structural theories can be used to explain crime in different societies.) 162  Kam C. Wong, “The study of criminology in China, Part I,” China Report, 44(3) (2008): 213–31. 163  Lucian W. Pye, “Review: Social Science Theories in Search of Chinese Realities,” CQ, 132 (1992): 1161–70. (Career-minded young Asian scholars wanting to establish themselves or seeking to secure tenure tried to force ill-fitting Western theories into their respective disciplines to explain the complex and complicated world of China.) 164  Zhu Xudong, “Regarding Certain Issues Regarding Research on Police Studies” (“Guanyu jingcha xuexi yanjiu zhong jige wenti de tantao”), PSUJ, 101 (2002): 149–55, “3. Jingcha xue xueke yanjiu ben tu hua de wenti.” (“Ben tu hua,” or “domestication” of foreign ideas and practices, privileged Western ideas over domestic ones. This resulted from an uncritical acceptance of positive science by the academic community in the nineteenth century, as championed by England, France, German, Italy and the United States. With the decline of European and US influence in world affairs and the emergence of post modernism and multi-culturalism, the positive scientific model’s “objective” view of the world is increasingly being challenged by culturalists and ridiculed by the post-modernists. Since policing research is a local knowledge (“di fang sheng zhishi”) (C. Geerz), foreign and imported police ideas and practices must be subjected to local adaptation before being used. Specifically, police studies must reflect and be informed by Chinese historical, social and cultural characteristics. Police research must focus on Chinese problems and issues. Police research must be an independent exercise and be critical of the status quo. Police research must make an independent contribution to China policing and purge foreign influences, entirely. (pp. 153–4).)

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enough valid and reliable empirical data165 to support any theory building.166 A Different Approach to the Study of Chinese (Hong Kong) Law is in Order The study and reform of Hong Kong law requires a culturalist approach. One proposal is to have bi-cultural researchers who are at ease in two cultures.167 It is observed that intimate knowledge with culture and good facility with language allows a researcher to reach back into forgotten historical memory, dig deep into obscured cultural meaning and access latent emotional feelings to provide a more complete and holistic picture of matters under investigation and materials to be interpreted.168 While Huang made clear that his preference for bi-cultural researchers is not meant to exclude “foreign” researchers, it is also clear that he thought that researchers locally born and bred have a natural advantage over and above those who just learned about China by education and through immersion. 165  In other areas of research, archives are opening up for inquisitive scholars, Philip C.C. Huang, “County Archives and the Study of Local Social History: Report on a Year’s Research in China,” MC, 8(1) (1982): 133–43. 166  Philip C.C. Huang, “Theory and the Study of Modern Chinese History: Four Traps and a Question,” MC, 24(2) (1998): 183–208. (Empirical historical research is better than theoretically driven research in understanding China. Theory might be too simplistic, ideological or ethnocentric to capture true conditions in China.) 167  Philip C.C. Huang, “Biculturality in Modern China and in Chinese Studies,” MC, 26(1) (2000): 3–31. 168  For a rejoinder see, Prasenjit Duara, “Response to Philip Huang’s ‘Biculturality in Modern China and in Chinese Studies’,” MC, 26(1) (2001): 32–7. (The bi-cultural approach provides no escape from globalization of knowledge, universalization of culture, and commoditization of ideas, especially when the underlying indigenous culture (China) (willingly or by force of circumstances, consciously or unconsciously) increasingly takes on a modernized look and feel.) In response to Duara, my sense is that the transformation of indigenous culture, while a distinct possibility, does not mean that local knowledge and indigenous understanding is no longer necessary for researchers. First, cultural transformation is an incremental, interactive, and intergenerational project. Japan today still enjoys a village-like culture, in many respects. David Bayley, Forces of Order (Berkeley, CA: University of California Press, 1991). Second, local memory is cumulative and becomes part of a bi-cultural person’s persona, once assimilated. All understanding of a culture will relate back to his/her exposure to a culture, especially when one is being brought up in a certain cultural milieu in time and place. The culture will change, but one’s cultural identity and memory remains, and keeps renewing and reinventing itself. This cultural exposure becomes one’s life experience and provides the context, and facility, for one to make sense of what one sees and hears in later life. Berman, Harold J., “The Historical Foundation of Law,” Emory Law Journal, 54 (2005). (Learning a language and culture is thus learning how to negotiate a given social milieu; what things mean and portend. Thus to understand a language is also to under life as experienced in a group.) Michael W. Nicholson, “Abusing Wittgenstein: The Misuse of the Concept of Language Games in Contemporary Theology,” Journal of the Evangelical Theological Society, 39(4) (1996): 617–30.

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Another proposal is to supplement the foreign view of Chinese reform in general and Hong Kong legal reform in particular,169 counter-balancing it with internal perspectives, domestic voices and grass-roots understanding.170 This approach is what is sought here. III. Standards Assessment of the ICO requires the setting of benchmarks, here jurisprudential standards. In order to understand the jurisprudence of police accountability in Hong Kong, one must start with (legal) culture. Culture informs on the meaning of social intercourse and communal life. It tells us about what is good, bad or beautiful.171

169  With an abiding faith in US ideological exceptionalism (democracy, equality, rule of law) and an equally strong conviction in scientific universalism (rationality, objectivity, generalizability), American scholars have a tendency to examine societies everywhere under a microscope, in order to validate the absolute superiority of American theories or downplay the possible contribution of non-American paradigms. Lucian W. Pye, “Asia Studies and the Discipline,” PS: Political Science and Politics, 34(4) (2001): 805–7. (“But does anyone believe that American practice can be treated as the norm for everyone? Or even for any other particular country” (p. 805).) 170  In 1999, the author established, along with other interested Asian police scholars from Taiwan, PRC, Hong Kong and Korea, the Asian Association of Policing to bring indigenous voices to the study of Asian policing. “Closing Remark” (AAPS Presidency Inauguration Speech) AAPS Third Annual Conference: Asian Policing in the 21st Century, Open University, July 29, 2002. Co-sponsored by the Center for Criminology, Hong Kong University, Open University, Chinese University of Hong Kong. Kam C. Wong, Asian Policing in the 21st Century (Proceedings) (Hong Kong: AAPS, 2002) (There is a need to study policing from a local perspective and with indigenous data, looking at policing from inside out and bottom up. Comparative policing should be taught with local content and within the local context.) Much of the recent China political science and police study research and writing is by first- and second-generation China scholars who are educated in the West, e.g., Wu Guoguan, a Princeton political scientist from Victoria University was within the inner circle of PRC Premier Zhao Zhiyang before his demise and Fu Hualing, who single-handedly plowed the field of China police studies in Hong Kong University in the 1990s, was educated at the University of Toronto and was a PRC police instructor in the 1980s. David Shambaugh, “Keeping Pace with a Changing China: CQ at 35,” CQ, 143 (1995): 669–76. (The China Quarterly now has outstanding contributions from mainland China emigrants who bring with them personal experience and nebu (internal documents), connections within China and contacts inside institutions.) 171  It was Max Weber who taught that man is an animal suspended in webs of significance he himself has spun.

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A Culturalist Approach In attempting to lay out the various meanings attached to the word “culture,” Clifford Geertz refers to Clyde Kluckhohn’s Mirror for Man in which the following meanings of culture: are suggested: “the total way of life of a people”; “the social legacy the individual acquires from his group”; “a way of thinking, feeling, and believing”; “an abstraction from behavior”; “a theory on the part of the anthropologist about the way in which a group of people in fact behave”; a “storehouse of pooled learning” “a set of standardized orientations to recurrent problems”; “learned behavior”; “a mechanism for the normative regulation of behavior”; “a set of techniques for adjusting both to the external environment and to other men”; “a precipitate of history”; “a behavioral map, sieve, or matrix.”172 Culture is learned normative behavior, i.e., it tells people what to do or not do. As succinctly observed by John H. Bodley: Culture involves at least three components: what people think, what they do, and the material products they produce. Thus, mental processes, beliefs, knowledge, and values are parts of culture. Some anthropologists would define culture entirely as mental rules guiding behavior, although often wide divergence exists between the acknowledged rules for correct behavior and what people actually do. Consequently, some researchers pay most attention to human behavior and its material products. Culture also has several properties: it is shared, learned, symbolic, transmitted cross-generationally, adaptive, and integrated.173

172  There are many definitions of culture reflecting different approaches—historical, functional, symbolic etc.—to the study of culture. In 1952 Alfred Kroeber and Clyde Kluckhohn, American anthropologists, published a list of 160 different definitions of culture. For example, some definitions of culture included: Historical: Culture is social heritage, or tradition, that is passed on to future generations; Behavioral: Culture is shared, learned human behavior, a way of life; Normative: Culture is ideals, values, or rules for living; Functional: Culture is the way humans solve problems of adapting to the environment or living together; Mental: Culture is a complex of ideas, or learned habits, that inhibit impulses and distinguish people from animals; Structural: Culture consists of patterned and interrelated ideas, symbols, or behaviors; Symbolic: Culture is based on arbitrarily assigned meanings that are shared by a society. This indicates the diverse meanings of the anthropological concept of culture. Indeed as early as 1872 the British Association for the Advancement of Science created the first inventory of cultural categories with 76 categories. In 1938 the “Outline of Cultural Materials” was published and is still used as a guide for cataloging great masses of worldwide cultural data for cross-cultural surveys. 173  John H. Bodley, “An Anthropological Perspective from Cultural Anthropology: Tribes, States, and the Global System,” (1994), .

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Chinese Jurisprudential Ideas and Ideals: Qing Li Fa The legal concepts and jurisprudential principles of “Qing” “Li” “Fa” (情理法) (hereinafter QLF) or “ren qing” (“human nature/relation/compassion”)174 vs. “tian li” (“heavenly principles”)175 or “qing li” (“accepted code of conduct”)176 or “lun li” (ethical principles)177 vs. “guo fa” (“state law”) are dominant ideals and dominating ideas behind Chinese legal qua general culture.178 QLF are embedded and inter-related179 cultural tenets; espoused and dynamic180 ethical precepts in imperial China181 which informed social practices and guided personal conduct. As jurisprudential principles, QLF considered independently 174  One of the major difficulties in comprehending, interpreting and applying QLF as jurisprudential concepts is that “qing” and “li,” like justice and fairness, mean different things to different people. Furthermore the weighting, prioritizing and balancing of QLF in arriving at an optimal QLF decision is not something which everyone can agree upon. In fact, different mixes of QLF in various decisions can satisfy most people. Conversely, any imbalance of QLF, no matter how slight, might attract detractors and dissenters. It goes without saying that any change in findings or interpretation of facts might affect the outcome. 175  What is deemed reasonable. The Chinese Pinyin Chinese-English Dictionary (Hong Kong: Cmmercial Press, 2005), p. 675R (hereafter PYCED). 176  What is deemed reasonable. PYCED, p. 556L. 177  PYCED, p. 449L. 178  In popular culture, QLF has been routinely borrowed to justify one’s action; oftentimes contrary to or deviation from what QLF truly entails or actually requires. In other circumstances, people have failed to grasp the true and multiplex meanings of QLF. For example, QLF has been equated with human emotion–reasoning–law. 179  QLF are inter-related in the following senses: (1) “qing,” “li” and “fa” are not independent from each other, conceptually, theoretically and operationally. For example, conceptually “qing” or “renqing” (human nature) while born to a human is shaped by the law of nature (tian li) and conditioned by rules of culture (li). (2) The formulation and content of “li” is less a product of armchair contemplation as it is a grounded intuitive, experiential and empirical exercise. In this regard, “li” must cater to natural forces, social conditions, human nature, life circumstances and situational factors. (3) In terms of application, what is proper “li” is never a standalone ethical-principle derivative (as with the categorical imperative of Kant) but very much a factual-ethical product (much like determination of reasonableness in tort law). 180  QLF is dynamic in many ways. (1) QLF are not static concepts. The content and contour, meaning and feelings of QLF, individually and collectively, change with time, people, place and issues. (2) QLF interact with each other dialectically and continuously in shaping content and defining practice. (3) Outcome of QLF is contingent on the totality of material context and all aspects of prevailing circumstances. (4) The process of QLF is as important as the standard of QLF in shaping outcome. Change in process leads to change in outcome. (5) There is no one correct or best QLF disposition, but many acceptable QLF outcomes. 181  A legitimate question is raised as to the content and viability, priority and mix, identification and subscription of QLF in modernized China, Westernized Hong Kong or globalized Taiwan. Like questions can, and should be raised about how QLF fares within the diverse population in Hong Kong, e.g., Hong Kong belongers vs. new immigrants, Western educated vs. domestically educated, professional vs. blue collar.

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and as a whole were central to the formulation of legislation, implementation of law and dispensation of justice, and indeed all life choices, in imperial China. The import and impact of QLF in Chinese culture and social intercourse can be gauged by looking at popular cultural practices.182 Chinese people then as now make evaluative social, economic, political or legal judgments of all kinds as “he qing he li” (compatible with human nature and reason)183 or “bu he qing li fa” (not being compatible with QLF).184 The ultimate objective of law makers and judicial officials was to actualize QLF as a way of life, i.e., establish a harmonious185 and peaceful world wherein the ideas and ideals of Confucius hold sway.186 Everything should be found in

182  A keyword search using “情理法” (QLF) on yahoo.com turned up 12,100 items (March 19, 2012). A search on Google – Scholar turned up 402 items (March 19, 2012). 183  “‘Qing Li Fa’ in Management” (“Guanli zhong de ‘qing li fa’” “管理中的 ‘情 理 法’”) (Modern Business Management Can Improve with “qing” “li” “fa.”) Q is human sentiment and individual feelings. L is reasoning. Fa is fundamental principles adopted by the company, http://admin.asiaec.com/wenzhang/11023763/20050513/130035.html Visited March 19, 2012.. E Wang Yun, “Qing Li Fa Conflicts in Maintenance Disputes” ( 赡养纠纷的情理法冲突), Law in Oriental Eyes, April 26, 2007, . (In China there is a venerable tradition: “old people are to be supported” (“老有所养”). This is changing with time and with the breaking of the old social and moral order. This sea change in culture, custom and attitude affects how old people should be taken care of. This raised a whole host of QLF issues the law has yet to satisfactorily resolve. For example, maintenance issues arose because one or more children did not want to assume responsibility due to a lack of education, lack of ability, feeling unfairly treated by their parents over estate dispersal, and unequal burden because only males have to pay maintenance, as well as parents–children discord.) 184  Wu Qin-dian “Revelation about Traditional Chinese Law which Accommodates Qing Li Fa” (“Qing lif fa jian ron de zhongguo gudai falu ji qishi” (“Accommodating QLF, Revelation of Chinese Imperial Law”), (Updated February 16, 2007). (A newly-wed couple refused to move into a house they bought in Shanghai because their painter committed suicide in the house.) 185  Huang Yongmin, “The Concept and Practice of ‘Implementation of Law Like Water’ within the Language of Harmonious Society” (“Hexie shehui yujing xia de ‘zhifa ru shui’ linian ji qi shijian”), Jaingcha Fengyun (检察风云), March 5, 2007, 12:04:15, . (The vision of a socialist legal system is to achieve harmony. This lofty goal is made unattainable by a litigation explosion. People are taught to fight for their legal rights at all costs. They also resort to court to resolve interpersonal problems as a first instead of last resort.) 186  Gu Yuan (顾 元), “Conflict and Reconciliation between Following and not Following the Law: Balancing Qing and Fa” (“Xun fa yu beifa de maodun you tuoxie, zhuo yu fa-li zi ping”), February 16, 2007, .

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its proper place and intercourse should be conducted in a harmonious and well balanced187 manner without conflicts or disputes.188 Chinese philosophers have long been interested in QLF as jurisprudential principles.189 This was particularly so with the publication of the book “Qing, Li, Fa and Chinese People” in 1991.190 Research and publications to date have focused on the nature191 and characteristics, role and functions, theory and practice, conflict and resolution, impact192 and implications193 of QLF. However, notwithstanding the importance of QLF, there are very few occidental legal or jurisprudential publications on this subject matter. This lack of Western literature hampers our understanding of Chinese (Hong Kong) law in theory and practice. The Supremacy of “Li” over “Fa” In Chinese society, past and present, “fa” (law) takes a back seat to “li” (rites). In imperial China, human conduct is judged by and regulated with “li” (rites) 187  The Chinese character for “law” (“fa” or 法) consists of two radicals. The radical to the left represents water and the radical to the right represents wash away. The function of law is thus to wash away bad things with water and return to normality, tranquil and peaceful. Thus justice to Chinese is the leveling of upheaval to a prior state of tranquility, much like the natural tendency of water. Water will return to calm in due course. Huang Yongmin, “The Concept and Practice of ‘Implementation of Law Like Water’ within the Language of Harmonious Society”; Xu Zhongming, Precedents, Stories and Judicial Culture of Ming Qing Dynasties, pp. 336–9. 188  Liang Zhiping, Seeking Harmony in Natural Order (“Xuzhao ziran zhixu zhong de hexie”) (Zhongguo zhengfa daxue chubanshe, 1997). 189  Huo Cunfu, “The Cultural Traits and Trace of Traditional Chinese Legal Culture”; Fan Yu, “The Contradiction and Integration of Qing Li Fa,” Xinhua Wen, July 7, 2003 . 190  Fan Zhong Xin, Qing Li Fa Yu Zhong Guo Ren (QLF and the Chinese) (Beijing: Chinese People’s University Press, 1992). 191  Wu Qin-dian “Revelation about Traditional Chinese Law which Accommodates Qing Li Fa.” (Qing Li Fa reveals the nature and characteristic of the Chinese legal system, in culture and operations.) 192  “Implementation of law like mountain” (“zhifa rushan”) (which is called for by the rule of law regime) is incompatible with “implementation of law like water” (zhifa ru shui). Huang Yongmin, “The Concept and Practice of “Implementation of Law Like Water” within the Language of Harmonious Society.” (An abstract, general, universal and inflexible law cannot deal with every concrete, individualistic, particularistic and evolving life situation. The court must resort to negotiated justice and to QLF to make litigants happy.) 193  Judges should take into account the consequences of decisions on litigations directly, other people indirectly and the society ultimately. For example, what is the impact of judicial decisions on the relationships of the parties or the final settlement of disputes. Ibid.

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inculcated through “jiao” (education) and not with “fa” (law) enforced by means of “xing” (punishment). Law is established to supplement the rites, and brought into play as a last resort. Doctrinally, this is called the Confucianization of the law.194 Confucianization preaches that rites provide the law with content and spirit. Law is used to promote Confucius’ ideas and ideals. In judicial practices, law is based on Confucius’ teachings and Confucius’ teachings are resorted to in interpreting and applying the law. This is called “jing yi jue yu” (deciding cases based on Confucius’ teachings).195 QLF as a Legislative Goal The Preface to Tanglu Shuyi (Commentary to the Tang Code (653 CE)) observed that: “Law is established by Tang, but it should represent the essence of human nature (“tongji renqing”) and the dynamics of legal reasoning (“fali zi bian”). (Tang) Law should not stop (evolving) with Tang.”196 In essence, the Tang Code, as with all laws, should reflect and reinforce “renqing” (human nature) and “fali” (moral principles). During the Ming dynasty (1368–1644), Liu Weiqian, a counselor to Zhu Yuanzhang, the first emperor of the Ming Dynasty, compiled the “Jing Ming Lu Biao” to advise Zhu on how to establish the Ta-Ming-Lu (Great Ming Code). Zhu observed: “Your honor considers matters broad and deep. Law should be made in accordance with principles of heaven above and compatible with human nature below. These standards should last for hundreds of years.”197 Finally, in the Preface to the “Great Qing Code,” it was said: “The emperor … ordered officials to take the laws … and edited the same. Law should be made consistent with heaven’s principles and acceptable to human nature.” As the above legal text made clear, laws in imperial China must flow from natural law above (“tian li”) and derive from human nature below (“renqing”).

194  Wong, “ Confucianization of the Law,” see text to notes 6 and 7. 195  “Iing yi jue yu” is also referred to as “Chunqiu jue yu.” “Chunqui” (Autumn and Spring Annals) of course is one of the five classics (“wujing”) authored by Confucius to teach his followers. “Chunqiu jue yu,” as with the complete Confucianization of law, was achieved during the Han dynasty (206 BCE–24 CE). The basic principle of “Chunqiu jue yu” is that cases are decided upon with reference to Confucius’ doctrine, starting with determining the “heart” and “motive” of people, not just intent, act or harm. Ma Zuowu, Chinese Traditional Legal Culture (Zhongguo gudai falu wenhua) (Jinan: Jinan daixu chubanshje, 1998), pp. 136–42. 196  《〈唐律疏议〉序》云: “然则律虽定于唐,而所以通极乎人情、法理之变者, 其可画唐而遽止哉?” 197  明人刘惟谦等《进明律表》: “陛下圣虑渊深,上稽天理,下揆人情,成此百代之 准绳.”

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QLF as Adjudication Standards QLF was first adopted to guide adjudication.198 Historical records make clear that the term “QL” started to be widely used in the Song (960 – 1276), Ming (1368 – 1644) and Qing (1644 – 1911) dynasties to decide cases. Originally, “qing” referred to “anqing” (facts of a case) or “shiqing” (cause of a case) or “zhenqing” (truth of a case). In order to decide a case correctly, the judicial officers have to ascertain the facts and circumstances of each case, i.e., “anqing,” with an eye toward establishing “zhenqing” or truth.199 With the ascertainment of “zhenqing” (truth), the “yuanqing” (ultimate cause) of a case can be established. With the discovery of the truth and finding of the cause of a case at hand, the case is ready for resolution, at its roots and once and for all. Why is there a need for “yuanqing” to be found? In imperial China, personal conflicts were viewed as a social-structural problem, not just an inter-personal dispute. In order to satisfactorily resolve a dispute once and for all the magistrate had to find out all the pertinent facts: the immediate cause, the ultimate cause, all contributing factors and all mitigating and aggravating circumstances. This meant that the imperial officials had to not only look at the immediate transactional facts of the case—who did what to whom and how—but also seek to understand the historical context, prevailing circumstances, situational dynamics, personal background and mental disposition attending the case before he could make a decision. In essence, the magistrate had to discover the true facts and find the root cause of a case in front of him. It is postulated that the discovery of (true) facts and (ultimate) cause contributes to real understanding which leads to human compassion (“renqing”), the ultimate objective of adjudication. In this regard Confucius said in “Lunyu Zichang”: “If people up top lose the way, the people below will be in chaos. If people truly understand the situation they (officials) will feel sad instead of happy.” Ignorance of the facts and circumstances of a case would therefore likely result in the

198  A number of misconceptions about the Chinese legal system and judicial process need to be corrected. First, the Chinese judicial process is an arbitrary one, not confined by ascertainable rules, informed by objective facts and given to arbitrary decision, i.e., totally devoid of internal rationality and external accountability. Nothing can be further from the truth. Max Weber described Chinese justice as non-rational—Kadith justice. In fact, Chinese officials were closely supervised and tightly regulated in what they should/ could and should/could not do. Imperial China was an administrative state in pursuit of a heavenly mandate on earth by an absolute emperor. The emperor ruled by and through his officials. This is called “li zhi” or governing through officials. Under “li zhi” officials are strictly regulated by law and accountable to the emperor. The yushi functioned as the emperors personal envoy in checking on the officials. 199  “Zheng” means makes real. “Qing” means circumstances or feelings. “Zheng Qing” thus means “real situation” or “state of affairs” or “true feelings or sentiments.” PYCED.

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miscarriage of justice,200 e.g., blaming the exploited and punishing oppressed citizens for government malfeasance. Attaining ultimate truth (“yuan qing” [原情]201) allowed Chinese officials to pursue “yuan qing ding guo” or “finding culpability based on the facts and circumstances of a case.”202 Particularly, the determination of every case was made to turn on the subjective motivation (“dong ji”203) of a person and objective circumstances (“qingjie”204) in the case. Yuang Zhang Yanghao (1270–1329) who worked as a local magistrate, imperial censor (“yushi”) and Secretary of the Board of Rites (“Libu Shangshu”) observed that people are basically good, and that they turn to criminality because of forced circumstances, e.g., lack of education or opportunity. “Who can resist temptation when they are poor and struggle for survival?”205 For example, when parents are starving and not properly clothed, when family members are sick and hungry, and when a wife is sad and despondent, the family head, husband or children are compelled to act, even if it is against the law. If that should be the case, the government should show magnanimous compassion to the people, instead of imposing draconian punishment on the offenders. To be compassionate is to put ourselves in the shoes of the offenders—to see things from their perspective and feel what they feel. This is where “renqing” (or “ren zhi chang qing” (normal for people under the circumstances) comes in.206 The underlying assumption is that people will not resort to crime unless they have to. The family bears responsibility for moral education, community bears responsibility for social supervision and the state bears responsibility for maintenance. Crime happens because of a failure in one or more of these necessary components for good order and discipline in a community.207 In this regard, it was also said: 200  《论?·子张》: 上失其道,民散久矣。如得其情. 201  “Yuan” (源) “ben yuan” (本源) the original root or source. Actually, “yuan” derives from the original phrase “shui yuan,” the source of a river or stream. (In “shui yuan,” the word “yuan” has a radical of water on the left.) Hanyu Dacidian (Shanghai: Hanyudacidian chubanshe, 1986), Vol. 1, p. 927L. “Yuan” has been interpreted as “yuan ben” unprocessed or original, not mediated, interpreted, or nowadays “spinner” (p. 928L). “Yuan Qing” thus mean the facts and circumstances of a case (“ben qing” or “qing you”) (p. 933R). 202  Ibid., p. 933R. 203  PYCED, p. 161R. “motive” or “intention.” Reasoning behind action. 204  “Qing jie,” PYCED, p. 556L. Circumstance of a case. 205  Yuang Zhang Yanghao (1270–1329) “Advise for Cultivating Citizenry” (“Mu Min Zhong Gao”). (元张浩《牧民忠告》). 206  “Ren” (人) is human. “Zhi” is a possessive verb, as in “being”. “Chang” (常) is routine or normal. “Qing” (情) is condition or nature of. Thus “ren zhi chang qing” means normally how things work out or how people behave. PYCED, p. 573R. 207  See “Crime Prevention” and PRC Comprehensive control. Chinese see the world as integrated and inter-depending.

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Common people are more likely to be alienated (易于散) because those above (authority) have failed to purse an integrative policy. In cases of hunger and coldness, alienation results. In the case of too many drafts of services, alienation results. In cases of too much levy and taxation, alienation results. If people are alienated, there is no mutuality of feelings, without feelings there is no obligation, without obligation, there will be conflicts and litigations. People try to take advantage of each other. This is why officials should seek out the facts and circumstances before seeking punishment. Feeling sad and sorry, and not happy. Sad because of the misfortune of the downtrodden, sorry because of the lack of knowledge of the offenders. Not happy and content with the ability to control the people.208 The term “qing you ke yuan” is best summed up as “guilty but excusable.”209

As an illustrative example, it was recorded in the “History of Song: Criminal Law Notes”210 that during the reign of Song Emperor Zhenzhong211 there was a drought. People robbed the granary. This was a capital offense (弃市). A total of 318 Sazhou residents were sentenced to death. Emperor Zhenzhong remarked: “It is sad to rob rice. It is sick to harm and rob. Even when done as a result of a lack of food to survive.”212 From then on judicial officials were admonished to “jin qing” when deciding cases,213 i.e., to be empathetic to the plight of the offenders.214 Thus, in deciding cases, judicial officials were to follow two rules: “tui ji yi yiwu”215 and “she zhuan yi tan qing.”216 “Tui ji yi yiwu” is to put oneself in the shoes of others, i.e., empathize. “She zhuan yi tan qing” is to look beyond the surface, i.e., seek the truth. The first is a call for proper judicial disposition. If officials really care and understand the people, they will share in their outlook (perspective) and be solicitous of their welfare (sensitivity). This disposition, once adopted, will make officials see things the way people see them. In so doing, officials will become advocates of people’s interests instead of overseers of people’s faults. The second is a judicial technique. It calls for investigating a case in depth and leaving no stone unturned. It also admonishes magistrates to look into contextual matters, ultimate cause(s) and contributing factor(s) to help in understanding the case, in terms of what, why and how things happened.

208  明邱濬《大学衍义?》卷一百O六. 209 Ibid. 210  Tuo Tuo, Sungshi Xingfa Zhi《宋史·刑法志》(Beijing: Zhonghua Shuju, 1977). 211  Song Zhenzhong (宋真宗) (968年~1022年). 212  仁宗曰:‘饥劫米可哀,盗伤主可疾。虽然,无知迫于食不足耳.。 213  断狱者“尽情”察狱(即尽己“情”以断狱. 214  Tuo Tuo, Sungshi Xingfa Zhi《宋史·刑法志》(Beijing: Zhonghua Shuju, 1977). 215 “推己以议物.” 216 “舍状以探情.”

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What is “Qing”? “Qing” has diverse and rich cultural meanings.217 According to Hanyu Dacidian, “qing” can mean any one of the following: first, “gan qing” (“emotion or feeling”)218—Xunzi (c. 213 BCE) observed that people have emotions and are given to “hao” (love), “e” (evilness), “xi” (pleasure), “nu” (anger), “ai” (sadness), “le” (happiness);219 second, “benxing” (“natural characteristics/instinct/ disposition”);220 third, “yiyuan” (“aspiration/desire);221 fourth “qingyu” (“sexual passion);222 fifth, “qingli” (“reasonable or accepted code of human conduct”);223 sixth, “min xin” (“aspiration/feelings”).224 In Chinese agrarian society of old, “qing” was a most important consideration. According to folklore “qing” originates from the “heart” (“xin”) and affects everything we do. It is fair to say that without “qing” social intercourse stops. In the reading of imperial judicial decisions there were many ways the word “qing” was used, depending on context, circumstances and situations: 1. Qing as “an qing” “zhenqing” and “yuanqing.” The first and foremost task of a judicial officer is to establish “an qing” (the facts of a case) “zhenqing” (the truth in a case) and “yuanqing” (the cause of a case). 2. Qing as “renqing.” The most common use of “qing” is to talk in terms of “renqing.” This refers to the ordinary disposition of a person (“ping fan zi xin”—平凡人之心). To know about “renqing” allows us to calculate what others would think and do in like circumstances, i.e., being empathetic.225 People can anticipate and make allowances for each other if they understand each other, in the first person. This also sets forth a reasonable code of conduct for people to follow. 3. Qing as “qing yi.” The word “qing” also refers to good relationships between people, e.g., “qing yi” (friendly feeling giving rise to obligations),226 “qing mian” (consideration for others’ feelings).227 This is commonly referred to

217  Hanyu Dacidian, Vol. 7, pp. 577–88. 218  Ibid., p. 576L. Also “qing gan,” PYCED, p. 536R. 219  “Xunzi. Zhengming.” 220  PYCED, p. 29L. 221  PYCED, p. 824R. 222  PYCED, p. 556R. 223  PYCED, p. 556L. 224  PYCED, p. 473. 225  Western culture, reinforced by jurisprudential principle, promotes autonomous individualism. We are not expected to anticipate and make allowances for what other people do. This is a reactive model, i.e., reacting to what other people do, instead of a proactive model, i.e., anticipating what others do in adjusting our own actions. 226  PYCED, p. 556R. 227  PYCED, p. 556L.

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as “renqing” (human feelings, sensitivity, sympathy).228 “Qing yi” is the basis of Confucius’ moral principles. 4. Qing as “lun li.” For most of the time use of the word “qing” refers to the moral principles (“lun li”—伦理)229 of “renqing” (人情),230 more generally “renqing shigu” (人情世故) or worldly wisdom,231 local conditions and custom (“defang fengtu renqing”—地方风土人情),232 custom and habits (“fengsu xiguan”—风俗习?). As a result “renqing” carries with it a large Confucian influence. In some cases “qing li” refers to logical deduction (“loji tuili”—逻辑推理) or common regulatory principles (“pupian guilu sheng de daoli”—普遍规律性的道理).233 What is “Li”? “Li” can be translated into “dao li” meaning reason; alternatively, justification for doing things, or “you dao li” (possessing reason). Reason or justification for actions taken is informed by culture, and follows bounded rationality. It goes without saying that what is reasonable in one place, for one person, at one moment, within one community, for one culture may or may not be reasonable for another. “Li” is also called “qing li” or what we can expect from a person given his or her social relations, life circumstances, and situation factors. This recalls the “reasonable man” standard in tort law. “Qingli” can be of two kinds: First, “qingli” is what people would or would not do under like status and circumstances. What people would do depends entirely on the role and relations people are born with, into, and expect to do.. Thus it is reasonable to expect a son to conceal his father’s crime from an official. Loyalty to a father is human nature. Sometimes we called this “qing bu zhi jin” (inability to resist one’s nature). This is personal – individual origin of “qingli”. Second, “qingli” refers to the collective feelings of groups on certain issues. Collective sentiments can be entrenched, as in customary norms, or they can be temporary, as in the case of public opinion. Thus, it is reasonable to expect a person to side with his clan against another feuding group. This is social – collective origin of “qingli”.

228  PYCED, p. 572R. 229  PYCED, p. 448L. 230  PYCED, p. 572R. 231  PYCED, p. 572R. 232  PYCED, p. 203R. 233  He Jian (何剑), “Giving Due Consideration to ‘Qing, Li, Fa,’ a Magistrate Fulfills his Duty in Settling ‘Human Relations Case’” (“Jiangu ‘qing li fa’ yuanling bing gong banliao ‘renqing an’” (兼顾“情理法”　县令秉公办了“人情案”), Fazhi wen bao (法制晚 报), August 5, 2006, 4:38:03, .

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Finally. “tian li” refers to the heavenly way, i.e., the natural law of how and why things work the way they do. In the eyes of Confucius, “tianli” agrees with Confucius’ “lun li” (morality and ethics)—based on structured relationships between people: emperor–officials, father–son, husband–wife, brother–sister, friend–friend—and ethics, “li” (rites), “ren” (benevolence) and “yi” (loyalty). This is moral origin of “qingli”. What is “Fa”? “Fa” means law in China. In traditional China “fa” is equated with and amounts to “xing” or punishment, ranging from war-like extermination (and associated enslavement) to torture to imprisonment. Since punishment can be inflicted by the emperor (by and through the officials) and used by the family (from head of family to chief of clan), “fa” refers to coercive punishment imposed by “guofa” (state law) and “jiagui” (family rules), incorporating “tianli” from heaven above (as reflecting natural/moral rules and as required by Confucius’ teachings) and “qingli” from earth below (as reflected in customary rules and as required by family expectations). Thus understood, “fa” encompasses positive rules (Tang Code and family rules ) as well as informal norms (Emperor’s decree, parental expectations), moral (Confucianism) and conventional (custom). How Judges Apply Qing Li Fa234 What did being a QLF judge in imperial China call for? When resolving disputes or rendering judgment,235 Chinese imperial officials started with a search for the truth before exercising discretion, as guided by law. Song Emperor Gao Zhong called for “yuan qing ding zui” or “guo” (determining guilt or culpability based on true facts): “Once a law is promulgated it will never change. However, facts and circumstances are always different. Since the law is to forestall evil, (judges need to) ascertain all the facts before positing guilt. They

234  Liu X Jun, (劉馨珺). “A Discussion on the Use of ‘Qing Li Fa’ in ‘Prison Litigations’” (“Lun Songdai ‘yusong’ zhong ‘qing li fa’ de yuyong”) (“論宋代「獄訟」 中「情理法」 的運用”), Legal System History Research (法制史研究),_ 3 民91.12: 95 – 137. web.ncyu.edu.tw/~hsinchun/page5/study/3.pdf. Professor Liu studied judicial opinions from the Song dynasty to understand the principles and application of QLF, inductively. 235  Imperial Chinese officials closest to the people were likely to be the local magistrates. The magistrates were called “fu wu guan” (father and mother official). Like parents they took care of all the needs, wants and problems of the people. In deciding cases, the magistrates not only applied the law and decided right or wrong, they tried to resolve the disputes between parties with an eye toward solving the problems once and for all. They were responsible for educating the people, making them better people with higher moral standing, making the society a better one in the process.

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need to get to the truth of the matter.”236 “Yuan qing ding zui” requires that officials discover the cause of the incident and people’s motives, before passing judgment. First, by understanding others (their motives) we gain understanding of their action, and with that, naturally, acquire greater identification with and compassion for their plight. This is the doctrine of “yuan qing shi you ke men.” In essence, the more we know the more we understand, and the more we understand the more we can identify—empathize and sympathize—with the offender. Second, the more we know, the more we can see the person’s act as normal instead of abnormal. People have their own reasons, inaccessible to others and incomprehensible to society, for doing things the way they do. Epistemologically, understanding requires knowing more, judging less. Third, a person’s liability and punishment should be determined with reference to motive or what comes from the heart (“xin”).237 Well-intentioned action should not be punished, or at least should be punished less. Evil intentions are punished with or without being manifested in action. Fourth, in passing judgment the yardsticks used should be “ren qing” and “tianli.” The issue here is: did the defendant do something a normal person would do in a similar situation,238 or what comes naturally to a person of similar status and under similar circumstances. If people are acting “normally” or “naturally” they are acting “reasonably” and should not be punished, since they are less blameworthy and deterrable. Fifth, officials are required to apply law in the books to facts on the street; i.e., to find concrete individual justice with abstract general justice principles. This requires the fitting of sterile, monolithic and inflexible laws to divergent contexts, moving events and dynamic situations. This in turn requires that officials differentiate between people and determine the existence of mitigating and aggravating circumstances, which ultimately bear upon moral culpability, social accountability and criminal liability. Specifically, officials should treat offenders lightly when circumstances dictate, i.e., “qing qing fa zhong” (literally “facts light and law serious”). In “qing zhong fa qing” cases (literally “facts serious and law light”), conversely, officials should levy greater punishment.239 Finally, officials should follow the principle of compassion, i.e., “zui yi cong qing” (treat doubtful cases lightly). In essence, if in doubt, offenders should be spared heavy punishment.240

236  論宋代「獄訟」中「情理法」 的運用, see text at note 22, at p. 5. 237  Ibid., p. 6. 238  There is an issue as to whether “ren qing” as a standard for a reasonable person was to be set empirically (custom) or prescriptively (Confucius). Ibid., p. 7. 239  Ibid., p. 9. 240  Ibid., p. 12.

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Applying Qing Li Fa: A Demonstrative Case A breach of marriage contract case in the Qing dynasty, recently published in China, helped to demonstrate and make clear how “qing” “li” “fa” were applied to resolve such a dispute. The case happened in the Qing dynasty, during the reign of Emperor Daoguang (October 3, 1820–February 25, 1850). A young lady named Wang lived with her mother after her father’s death. She was engaged to marry a young man in the same village. However, soon after the engagement, Wang fell ill. The doctors in the village could not help her and her mother became very worried for her health. One day, a young doctor named Pang came by the village and he treated Wang and nurtured her to good health. Wang was grateful to Pang and fell in love with him. Since Wang’s family was poor, Wang’s mother arranged for Wang to marry Pang to settle the medical charges. In the meantime, Wang and Pang had consummated the marriage. Wang’s fiancé found out about Wang and Pang’s relationship. He went to the local magistrate to contest Wang and Pang’s illegitimate relationship. Wang threatened to commit suicide if she was forced to marry her fiancé. The magistrate was confronted with a difficult case of “qing li fa.” In law Wang had broken a marriage engagement. However, Wang and Pang were truly in love, unintended and by force of circumstances. They had also consummated the marriage, albeit illegally. In essence, they were de facto husband and wife. The magistrate decided the case as follows: Wang and Pang stayed married. Pang had to redeem himself from punishment by paying Wang’s fiancé 10,000 dollars. He also had to return to the fiancé the 3,000 dollars the latter had paid for the bride. As explained in the commentary to the case, Pang, Wang and her mother had clearly violated the law by breaching an engagement, intentionally. Pang and Wang had engaged in immoral and illegal sexual activities while not married. The fiancé on the other hand had done nothing wrong. Legally, Wang and Pang should be punished and the fiancé made whole, i.e., be given Wang back. The moral and legal order had likewise to be vindicated. However, the magistrate had to consider the facts and circumstances to take into account the “qing,” “li,” “fa” considerations in the case, First, “ren qing” and “fa li” had to be considered. In terms of “ren qing,” it was most natural for Wang to fall in love with Pang who saved her life. Pang had given her a new lease on life. Wang was naturally appreciative of all the care and attention bestowed. In terms of “qing li” and “tian li” it was both naturally reasonable and morally right for Wang to marry Pang to repay him personally and emotionally. Chinese culture promotes the idea of “bao” (“bao en” or “repay a gratitude”). It was also quite natural for the mother to repay the medical debt by marrying Wang to Pang. Wang’s threatening suicide was also a natural thing to do. Wang could not love two persons at the same time. Her love for Pang was more real and deep. On the other

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hand Wang’s relationship with her fiancé was written on paper. Were Wang and her fiancé forced to marry they would end up with a broken family. Wang’s threat was also an honorable thing to do. Wang could not see herself having another husband. Wang had already married Pang. They were husband and wife! The best way to accommodate QLF was to punish Wang and Pang with a heavy punishment, in this case monetary. The principles of the law had to be vindicated. No one would be tempted to violate the law again. Pang had the benefit of Wang at the expense of the fiancé, therefore he had to stand ready to make the fiancé whole, by paying compensatory and punitive damages. IV. Comparison This section compares the Chinese jurisprudential thoughts of QLF with Western rule of law practices. Specifically, it asks whether “qing” and “li” are ever relevant considerations in Western judicial decision-making processes. Conventional wisdom and learned jurists have observed that the rule of law regime requires applying transparent, predictable and general rules equally to all people and situations, including to the law giver and enforcer, with no exceptions. This formulation precludes considerations of extra-legal matters, such as “renqing” (human nature; sentiments) or “tianli” (natural law; morality). If this should be the case, an interesting question avails itself: to the extent that “qing” and “li” are common features in all human societies, what role do they and should they play in Western rule of law jurisprudence? On closer inspection, a rule of law regime is not averse to taking extra-legal matters—natural human sentiments and shared moral principles—into account. In fact, it is observed here that no dispute resolution system in the world can long survive without meeting basic human needs or reflecting fundamental moral values.241 As to the justification for the first observation, it was Oliver Wendell Holmes Jr., the quintessential legal realist, who once said, the life of law is experience, not logic. As to the foundation of the second, it was the Bible which observed that men do not live by bread alone. The Anglo-American legal system and processes accommodate and give expression to basic (including debased242) human instincts (Chinese “renqing”) and moral (including amoral243) principles (Chinese “qingli” (custom) “tian li” (natural law)) in the following systemic and doctrinal ways: 241  Guo Yuan (顾元), “Comparing Traditional Chinese Equitable Jurisprudence and English Equity: Jurisdiction: Same Destiny Different Routes, Different Routes Same Destiny. (中国传统衡平司法与英国衡平法之比较—从“同途殊归” 到“殊途同归”), Comparative Law Research (载 《比较法研究》 2004年 第4期), 2004 . 242  The idea of revenge comes to mind. 243  Communism comes to mind.

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First, the common law tradition, unlike the positive law invention,244 is based on local customs and community conventions. The judges in hearing cases seek to ascertain local community standards made up of public expectations and personal sentiments. Under traditional common law, judges do not make law as much as find it in the ways and means of the people, as registered in their hearts and minds, as reflected in their values and dispositions, and as manifested in their tastes and habits. When people’s ways and means change, so does the case law.245 While both legal systems subscribe to inductive norms based on local sentiments, the common law follows common-rational expectations of the people in establishing norms, while QLF makes allowances for individual-personal differences, as exceptions. In this way, the rule of law regime seeks to standardize human needs (which is what reasonable man is anyway) while QLF embraces individual and individualized accountability (which is why motive is important). The other difference is that QLF is prepared to recognize the effective needs and emotional instinct of the individual, as natural and inevitable, whereas common law assumes that people can and should act rationally, notwithstanding such emotion and instinct. Second, the equity branch of the law allows natural justice principles to come into play to challenge “unfair” legal processes and void “unjust” outcomes of the law. Historically, common law courts restricted litigants to pre-establish single writ filing processes, where only known legal cause of action and limited remedies were available. The Chancellor’s court provides equitable remedies for such and other manifested injustices. In this way, the Chancellor’s jurisdiction and operations function very much like QLF, except that QLF operates routinely in applying integrated equity and legal principles and the Chancellor’s court intervenes, occasionally and exceptionally, when the legal system fails to delivery justice. Third, the jury system plays an important role in bringing people’s voices into the law246 and individual justice to the person.247 For example, in civil tort 244  John Austin’s law as command. John Austin, The Province of Jurisprudence Determined and the Uses of the Study of Jurisprudence, ed. Isaiah Berlin et al. (New York: Noonday Press, 1954 [1832]), pp. 13–16. 245  The common law has been applied in Hong Kong in importanting Western values and universal rights. Daniel D. Bradlow, “Recent Development: Foreword: Hong Kong Preserving Human Rights and the Rule of Law,” Am. U.J. Int’l L. & Pol’y, 12 (1997): 361. (American University Washington College of Law) Hong Kong: Preserving Human Rights and the Rule of Law, a conference sponsored by the International Legal Studies Program of the Washington College of Law, Human Rights Watch/Asia, and the Lawyers Committee for Human Rights, March 18–19, 1997.) (Both Christin Loh and Margaret Ng have posited faith in the common law tradition of Hong Kong to safeguard the right of Hong Kong people from an arbitrary and abusive Chinese-Communist influence, through the importation of human rights principles from abroad.) 246  Mark G. Gergen, “The Jury’s Role in Deciding Normative Issues in the American Common Law,” Fordham, 68 (1999): 407–85, 428. 247  Ibid., 429.

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cases, the jury play an important role is determining the normative standard of negligence, a factual-legal exercise.248 To do so, jury members have to consider the facts and circumstances of the case from the motive of the person to the customs of the place to the conduct of the parties, and finally to a variety of mitigating and aggravating circumstances.249 Fourth, the substantive due process doctrine allows judges to read into the Constitution what society considers to be fair and just to invalidate federal state and local criminal justice processes and practices. The Fourteenth Amendment of the US Constitution reads: “Section. 1 … No State shall make or enforce any law which shall deprive any person of life, liberty, or property, without due process of law ….” The Supreme Court of the United States has used the Fourteenth Amendment to declare certain rights to be “fundamental” in nature and not to be deprived, which, for example, precludes the use of coercive interrogation practices such as sleep deprivation.250 Finally, mitigating and aggravating circumstances in sentencing are considered at the penalty phase of a criminal trial, not the liability phrase. In civil litigation, 248  This amounted to an interjection of an extra-legal requirement of “reasonableness” in the approval process. “Negligence” or “reasonableness” is a Trojan horse of the law. It allows social morality to come into play in determining whether an act is legal. This conforms with traditional Chinese practice where the law adopted and incorporated social morality through a process called the Confucianization of the law. Kam C. Wong, “Confucianization of the Law.” In Western jurisprudence, the issue is most often raised under the rubric of a law vs. morality debate. See Martin P. Golding, Philosophy of Law (Englewood Cliffs, NJ: Prentice-Hall, 1975). The more pressing issue in the current context is whether social-moral principles could be used to interpret legal rules? In American tort law, the “standard of reasonable conduct” is a community standard and an ethico-legal judgment. See William Prosser, Law of Tort (St. Paul, MN: West, 1971), p. 167. 249  The American jury system originated with the firm belief that community justice shall prevail over the black letter law. Jeffrey Abramson, We, The Jury (New York: Basic Books, 1994), pp. 22–33. This has led inevitably to the nullification of the law based on “conscience of the community” in modern times. Michael Granberry, “Abortion Protest Juries Told to Ignore Nullification Ad,” L.A. Times (San Diego County edition), January 27, 1990, p. B1. See Jon M. Van Dyke, “Merciful Juries: The Resilience of Jury Nullification,” Washington and Lee Law Review 48 (1991): 165–83. In the case of “Camden 28” the judge allowed the draft card burning defendants to argue for nullification based on the fact that the FBI informants had supplied the antiwar protesters with the tools to carry out their draft raids. Donald Jackson, “Judge Instructs ‘Camden 28’ Jury,” New York Times, May 18, 1973, p. 13. The defense lawyer in the case argued to the jury that the term “nullification” means: “power of a jury to acquit if they believe that a particular law is oppressive, or if they believe that a law is fair, but to apply it in certain circumstances would be oppressive ….” Abramson, We, The Jury, p. 59. The jury “nullification” doctrine clearly allows the jury to rise above the confines of the law in search of higher justice. In so doing, they imbue the legal process with moral and ethical considerations. 250  Herbert Hovenkamp, “The Political Economy of Substantive Due Process,” Stanford Law Review, 40(2) (January 1988): 379–447.

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mitigating and aggravating circumstances, such as contributory negligence, are foremost in the minds of the jury. Confronting QLF: A Brief Summary Western jurists likewise have to confront QLF issues of concern to Chinese jurists.251 For example, how should rational laws deal with irrational people 251  In making this observation, I am reaffirming that law is an instrument of social control. It was Donald Black who observed that “law is governmental social control.” Donald Black, The Behavior of Law (New York: Academic Press, 1976), p. 2. In fashioning effective social control measures, law makers/givers (an Austin or a Pound) must take human nature (e.g., constitution (Herrnstein), disposition (Adam Smith), psychology (Freud) and spirituality (Bible)), community aspirations (e.g., ideology and morality), social conditions (e.g., development (Maine), structure (Marx) and process (substantive due process) and nature’s providence (natural law) into account, albeit in varying degrees and more or less in proportion. Thus observed, social controllers West and East are force to come to terms with (of necessity) and have to make allowance for (inevitably) for imperfect humans (e.g., immature juveniles or emotional conduct), a dysfunctional society (e.g., oppressive class structure and conflictual process) and an unpredictable nature (e.g., force of nature). More simply, controllers have no control over the subject and context of control. But as is made clear below, controllers do have ways of understanding (conceiving and perceiving), and in turn dealing with (receiving and disposing) the world as they see fit, as mediated by culture, as informed by philosophy, as driven by ideology. Social control schemes (as with and including law) differ—in the context of China or the West—as a result of two factors: social control philosophy and strategy; or what is the nature of the problem and how are social-behavioral problems of relationship rupture and personal deviance dealt with? In terms of philosophy, jurists, both East and West, are utopians in search of a better world; a more virtuous world in China and a more just world in the West. Their difference lies in the fact that Chinese jurists are realists in their mental disposition and pragmatists in their action orientation. Western jurists, on the other hand, are idealists at heart and puritans in action. Thus, Confucianism accepts people as they are, i.e., imperfect but perfectable, and the world as it is, i.e., corrupting but changeable, while Western jurists (Kant), are unwilling to (or perhaps incapable of) seeing and accepting the world—flawed individuals (irrationality) and a dysfunctional society (exploitative)—as it is, but insist on viewing and remaking the world as it ought to be—rational people, just processes, equal relations and a fair society. When it comes to social control strategies and measures, the Chinese are more practical. They want to change the society and reform the people systematically, comprehensively, holistically, if incrementally, indirectly and slowly. Thus they prefer education over punishment, surveillance over imprisonment, thought control over conduct restrictions, ratification of culture over blaming individuals, improving political/social/ material conditions in conjunction with individual/behavioral control. Conversely, the Western control regime is more punitive, retributive and deterring. It is more interested in making people pay for their indiscretion, repaying society for violations and stopping future misconduct, than transforming (criminogenic) society to reforming (criminolistic) individuals. Whether it is a punitive sentence or retributive punishment, the purpose of social control is to return people and society to an “ideal” and “pure” state. The best way to

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and emotional conduct?252 How can uniform and essentialistic laws deal with the vulgarities of human personality, the multiplicity of social conditions, circumstances and interactive situational contexts in positing blame and imposing liabilities? Ultimately, what happens when the law fails in its essential purpose—to uphold morality, deliver justice, provide security and demonstrate reasonableness? In practical terms, the strict enforcement of law brings about unacceptable results; challenging the jurists to forgo law to confront QLF. Professor Lon Fuller has masterfully explored what Western civilization and legal culture have to say when the stricture of law contradicts human nature, natural law, practical reasoning, or simple QLF issues, in imaginary cases designed to educate law students and practitioners about the limitations of the rule of law.253 The above brief discussion makes clear that the rule of law regime, based on a positive law theory and operating under a statutory law system, has accepted the need to better provide for human needs (realism) and moral principles (idealism) that are not adequately or properly dealt with by the zealous, fetishistic and blind application of the rule of law. The common law also has to be saved from the idea that it works too perfectly and efficiently, i.e. is too mechanical in process and too uniform in outcome. For example, by allowing only certain writs to be pleaded, heard and proven, many worthy litigants are denied legal remedy for harm done. The legal process cannot set behavioral standards when they are based on community values, contingent on a totality of circumstances, and informed by sum up this brief description of East vs. West social control philosophy and strategy is to encapsulate and demonstrate the two different approaches with cultural fables. While the Western jurist is like Don Quixote (Miguel de Cervantes Saavedra, El ingenioso hidalgo don Quijote de la Mancha (“The Ingenious Hidalgo Don Quixote of La Mancha”) (1605), who lived in a world of make believe and was bent on conquering evil (the windmill) and rescuing virtue (the prostitute), the Chinese jurist recalls the old man who wants to move a mountain one spoon at a time. 252  Western law is built upon the assumption that people are rational, or at least capable of being rational. It also assumes that people have free will. To say that people are rational is to say that their conduct is driven by hedonistic calculus, and that they are capable of being moved by punishment. Thus in drafting law, legislators should adopt Bentham’s utilitarianism (“the greatest happiness of the greatest number”) and Becerra’s deterrence (certainty, speed and proportionality). 253  Fuller, “The Case of the Speluncean Explorers.” For renewed discussion and analysis, see David L. Shapiro and Lon L. Fuller, “The Case of the Speluncean Explorers: A Fiftieth Anniversary Symposium Foreword: A Cave Drawing for the Ages,” Harvard Law Review, 112 (1999): 1834–50. There are real life cases resembling “The Case of the Speluncean Explorers.” For example, The Queen v. Dudley & Stephens, 14 Q.B.D. 273 (1884). US v. Holmes, 26 F. 360 (ED Pa. 1842), . Note, Michael Mallin, “In Warm Blood: Some Historical and Procedural Aspects of Regina v. Dudley and Stephens,” University of Chicago Law Review, 34(2) (1967): 387. A.W. Brian Simpson, Cannibalism and the Common Law: A Victorian Yachting Tragedy (Chicago, IL: University of Chicago Press, 1984).

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ill-defined and effervescent moral feelings. Finally, the Constitution, as a living compact, depends on people of the time to give it moral authority. The difference between rule of law and QLF is not that “qing” and “li” are considered unimportant in Western jurisprudence. As intimated earlier, we can take the law from the people but the human instinct for right and wrong remains. As a result of historical development and social needs, the rule of law regime has chosen to privilege law as the preferred instrument to discipline society, paying less attention to “li” and “qing” as ordering devices. With the rule of law, the sanctity of the law (FLQ) comes first, in China, violence of the law comes last (QLF). With the rule of law, QL becomes irrelevant in most cases. The assumption is that, as an ideology positive law should be sufficient and adequate in capturing all “qing” and “li” considerations in the legislative process. In exceptional cases, the court would construct a mechanism—e.g., a jury—and a doctrine—e.g., substantive due process—to breach the gap between theory and practice, routine and exceptional. In the case of QLF, issues of QLF must be considered in their totality—integrally, interactively, inter-penetratingly, inter-dependently and holistically. V. Assessment This section assesses the ICO—legislative process and statutory content—with reference to QLF, in order to illustrate its relevance and applicability. Failure of “Qing” As was made clear above, QLF requires a systematic and comprehensive investigation of all the relevant and material facts and circumstances of a problem, before an informed judgment can and should be made. The reasonableness of the legislative process is now put to test. Specifically, is the ICO fact-finding process reasonable (“he qing, he li”)? The observation here is that the ICO legislative fact-finding process is flawed, both in terms of perspective adopted and methods pursued. There are three kinds of legislative fact-findings associated with the ICO legislative process, i.e., facts about the necessity, utility or appropriateness of the ICO. For fact-finding purposes, the question of necessity, utility and appropriateness cannot be properly addressed without resolving the issue of perspective. As it stands, the ICO fact-finding process—from HK Law Reform Commission investigation to HK Legco public consultation—has been directed at what the Hong Kong administrative, political and legal elites think about Hong Kong people’s needs and wants. Three groups of voices are conspicuously missing: those of the Hong Kong people (in segments and as a whole); those of the Hong Kong police

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(in its law enforcement and security roles); those of the Chinese people (citizens, CCP and PRC). In terms of the Hong Kong people, it is observed that indigenous Hong Kong voices were under represented, in process and by result, deliberately or neglectfully, in the entire ICO legislative process. For example, the Hong Kong Bar Association’s position was prominently reported and seriously discussed, but the diverse voices of the people in the street were not assertively sought and seriously entertained.254 The paragraph on methodology, below, addresses the issue of lack of empirical research. With respect to Hong Kong law enforcement and security agencies, again, no attempt has been made to capture their points of views. Thus while the Security Bureau had an earlier opportunity to raise concerns about the adverse impact of the ICO on police operations, there were no independent and objective, systematic, scientific and comprehensive studies conducted on the possible impact and implications of the law on Hong Kong public security. The various Law Reform Commission reports come close, but they all missed the mark, by a wide margin, in what they failed to do or say, i.e., there was little space devoted to the discussion of law enforcement problems and issues, in concrete and specific terms. Finally, with respect to Chinese voices, they were deemed illegitimate and unimportant. Throughout the whole legislative process, every attempt was made to block out the voices of the Chinese people as a whole, i.e., what the PRC government, Communist Party, and citizens think. For example, how might Chinese residents’ privacy interests be affected when communicating with their family members? Or how might PRC real national security concerns be neglected by the ICO? Notwithstanding the Basic Law, Chinese people’s interests in Hong Kong and their hopes for Hong Kong cannot be artificially severed. Conversely, the Hong Kong people’s Basic Law right to autonomy does not mean that it is rightful or prudent (reasonable; “he qing li”) to exclude the PRC government’s concerns as well as those of Chinese citizens. Furthermore, methodologically, the public consultation process, while formally open to all, could not and did not reach into the hearts and minds of the people, in systematic, comprehensive, scientific ways. For example, no effort was made—scientific or otherwise—to study the attitude and sentiment of the Hong Kong people toward the issues of civil liberties, privacy and security.255 From US experience, we learned that after 9/11, a clear majority of the people in the US

254  That is not to suggest that the people’s voices were not, or not adequately, represented by the political parties or elected officials. It is however observed that the police voices were drowned out by the elite voices, offering paternalistic and platitudinous comments without (pertinent and adequate) factual support. 255  When it comes to law and order issues, Hong Kong people are very conservative. Otherwise, they have different ideas about and feeling for law and rights issues. Hsin-chi Kuan, “Support for the Rule of Law in Hong Kong.”

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were willing to trade security for liberty.256 While the wisdom of this preference has been called into question, public opinion must be taken into account. As to ascertaining Hong Kong law enforcement needs and security professionals’ concerns, an independent commission should be set up to study the impact and implications of the ICO on China and Hong Kong, including on the Hong Kong Police and ICAC operations. For example, how might law enforcement activities and anti-terrorism investigations be affected with or without the ICO? What are the direct and indirect, long- and short-term costs of the ICO to law enforcers? In summary, HKSAR and the Legislative Council failed to investigate the facts and circumstances bearing upon the necessity, utility and appropriateness of the ICO. Failure of “Li” In terms of “li” or “qingli” the question to be asked is: what is “reasonable” and “prudent” for Hong Kong people to do in light of the threat we face (securityterrorism) and risk we take (interest-liberty)? For QLF analysis, it is not enough to conclude that the ICO is needed to secure Hong Kong from criminals or protect Hong Kong people’s rights. We must look broader and deeper to provide for all the security needs of Hong Kong, existing or prospective, predictable and contingent. From a law and order standpoint, the ICO fails to address two emerging criminal problems and compelling security needs: cybercrime and acts of terrorism. In terms of cybercrime, it is clear that traditional interception and surveillance powers possessed by the HKP are not adequate to deal with the emergent problem at hand. In point of fact, the ICO was not designed to address computer crime problems, issues and concerns, explicitly and directly. Since Hong Kong is an established international commercial center and it is the government’s policy to make Hong Kong the cyber city of the world, it stands to reason (“qingli”) that the ICO should focus on dealing with police cyber power issues.257 Failure to do so certainly detracts from the utility and effectiveness of the ICO as a comprehensive and forward-looking crime-fighting tool. As a start, a properly drafted ICO, in order to meet cybercrime investigative needs, must address a number of unique issues posed by the virtual world.258 What authority do spouses, parents and employers have to give consent to 256  Berry Fong-Chung Hsu, The Common Law System in Chinese Context. (34.37 percent of the Chinese population and 37.5 percent of legal professionals believe that the police should be permitted to use limited torture to extract confessions (Table 6.1, p. 71).) 257  Wong, “The Discovery of Computer Crime in Hong Kong.” 258  “Federal Guidelines for Searching and Seizing Computers.” (July 1994) (Computer Guidelines) Computer Crime Unit. Computer Search and Seizure Working Group. General Litigation and Legal Advice Section Criminal Division Department of Justice. “Supplement to Federal Guidelines for Searching and Seizing. Computers/ Computer Crime & Intellectual Property Section Criminal Division” (October 1997).

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search a computer?259 What is the privacy expectation of a netizen subscribing to network services?260 Can the HKP keep surveillance on BBSs with or without sysops’ permission?261 What is the scope of a warrant search for a computer when the computer is connected to other devices, e.g., an external disc drive, or other depository of data on a local area network or in a global address list?262 Should computer searches be conducted on site or should computers be seized?263 In terms of political crimes—e.g., treason or terrorism—the ICO is equally silent. If ever there is a compelling need, the HKP needs structured interception and surveillance authority to deal adequately with terrorism and subversive activities towards the Hong Kong or Chinese government, especially after 9/11. Hong Kong is an international city. Many countries’ commercial and political interests are represented in Hong Kong. Hong Kong is also an open city. People from all over the world, with different political ideologies and religious convictions can come and go at will. Terrorism is a real threat to Hong Kong’s multi-national interests. Given the new organization structure—small cell, autonomous operation, independent command, fanaticist culture, advanced (WMD) technology, global (internet) communications capacity—of post-9/11 “new terrorism,” the HKP is ill-equipped. The ICO does not go far enough in meeting the emerging security needs of Hong Kong. For example, since small terrorist cells operate independently with few external links and little financial support, the HKP must use electronic surveillance or mass data mining to keep track of them. Currently, under an ICO warrant, mass data mining operations are prohibited. Failure of “Fa” The ICO followed Hong Kong law in a positive way and formal manner only. In effect, the ICO failed “guo fa” in spirit and ignored customary norms, in process and content, altogether. Under the Chinese concept of “fa,” the legislative process exists to ensure the voices of all interested parties—however marginal or powerless—are respected and taken into account in material and discernible ways, e.g., the officials who are charged with the implementation of the law (here, police operations) and the people who lend their authority and legitimacy to the law (here, public sentiments). During the entire ICO process, parliamentary rules were used to shut out police input, silence minority outbursts and otherwise marginalize grass-roots needs and concerns. In essence, “legislative due process” was not followed.

259  260  261  262  263 

Computer Guidelines, pp. 17–19. Ibid., p. 23. Ibid., p. 25. Ibid., p. 26. Ibid., p. 56.

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The ICO also violated “fa” in ignoring the roots of the law (communal needs and public sentiments), morals of the law264 and multiple realms of law (PRC law,265 common law). VI. Conclusion This chapter is an initial attempt to assess the merits of the ICO using venerable, popular and entrenched Chinese jurisprudential principles. In so doing it argues that the ICO legislative process and statutory content did not satisfy QLF jurisprudential standards in two critical respects: first, the Hong Kong government failed to investigate all the (relevant) facts before legislating, i.e., failure in “qing”; second, the ICO failed to address legitimate law enforcement and public security needs, i.e., failure in “li.” The failure of the ICO legislative process in ascertaining “zhen qing” and its failure to fill ICO statutory content with “qingli” place the political legitimacy and social utility of ICO in doubt. Appendix I: ICO Legislative Documents • Submission from Hong Kong Human Rights Monitor on surveillance, Article 30 of the Basic Law and the right to privacy in Hong Kong [CB(2)259/05–06(01)] • Judgment delivered by the Court of Final Appeal on the case of KOO Sze-Yiu and LEUNG Kwok-hung vs. Chief Executive of the Hong Kong Special Administrative Region on July 12, 2006 (English version only) [CB(2)2731/05–06(01)] (July 31, 2006) • Paper provided by the Administration on “Impact of the judgment delivered by the Court of Final Appeal in LEUNG Kwok-hung and KOO Sze-yiu v. Chief Executive of the Hong Kong Special Administrative Region on law enforcement before the enactment of the Interception of Communications and Surveillance Bill and the preparatory work undertaken by the Administration for the implementation of the Bill as enacted” [CB(2)2860/05–06(01)] (July 31, 2006) • Extract of minutes of meeting of the Panel on Administration of Justice and Legal Services on March 27, 2006 [CB(2)2050/05–06(03)] (May 22, 2006) 264  The ICO should give vent to local sentiments (security over liberties) and interests (stability over rights). 265  PRC Constitution and Hong Kong Basic Law precludes interference in the Hong Kong legal system by China or the operation of Chinese law in Hong Kong. It does not preclude Hong Kong people and by extension the Legco from respecting PRC legal interests (subversion) and applying Chinese jurisprudential principles to Hong Kong, at least theoretically and as points of contention.

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• Paper provided by the Judiciary Administration on “Resources Implications for the Judiciary arising from the Administration’s Legislative Framework Concerning Interception of Communications and Covert Surveillance” [CB(2)2050/05–06(01)] (May 22, 2006) • Paper provided by the Security Bureau on “Staffing Implications of the Implementation of the Interception of Communications and Surveillance Bill” [CB(2)2050/05–06(02)] (May 22, 2006) • Letter dated March 6, 2006 from Hon Ronny TONG to the Administration regarding overseas precedents relating to covert surveillance (English version only) [CB(2)1342/05–06(01)] (March 7, 2006) • Interception of Communications and Covert Surveillance—Panel of Judges [CB(2)1331/05–06(01)] (March 7, 2006) • Interception of Communications and Covert Surveillance—PreAppointment Checking [CB(2)1331/05–06(02)] (March 7, 2006) • Legislative Council Brief on the Interception of Communications and Surveillance Bill (March 7, 2006) • Administration’s paper entitled “Response to issues raised by Members at the meeting of 21 February 2006” [CB(2)1285/05–06(01)] (March 2, 2006) • Administration’s letter dated June 9, 2006 regarding the number of cases of interception of communications and covert surveillance for the threemonth period up to May 19, 2006 [CB(2)2361/05–06(01)] (February 21, 2006) • Interception of Communications and Covert Surveillance: Resource Implications for the Judiciary [CB(2)1189/05–06(01)] (February 21, 2006) • Letter dated February 25, 2006 from the Administration regarding the number of cases of interception of communications and covert surveillance in the last three months of 2005 [CB(2)1258/05–06(01)] (February 21, 2006) • Links to overseas legislation referred to in paragraph 21 of the Administration’s response to issues raised by Members at the meeting of February 16, 2006 [CB(2)1260/05–06(01)] (February 21, 2006) • Paper entitled “Response to issues raised by Members at the meeting of 16 February 2006” provided by the Administration [CB(2)1184/05–06(01)] (February 21, 2006) • Judgment on the judicial review in respect of the Law Enforcement (Covert Surveillance Procedures) Order delivered by the High Court on February 9, 2006 (English version only) [CB(2)1097/05–06(01)] (February 16, 2006) • Paper entitled “Leung Kwok Hung and Koo Sze Yiu v. Chief Executive of the Hong Kong Special Administrative Region (HCAL 107/2005)” prepared by the Legal Service Division [LS35/05–06] (February 16, 2006) • Paper entitled “Response to issues raised by Members at the meeting of 7 February 2006” provided by the Administration [CB(2)1162/05–06(01)] (February 16, 2006)

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• Table entitled “Statutory Requirements for Approval of Covert Surveillance—Comparison of the Administration’s Proposals and the Australian Regime” provided by the Administration [CB(2)1162/05– 06(02)] (February 16, 2006) • Background brief entitled “Regulation of surveillance and the interception of communications” prepared by the Legislative Council Secretariat [CB(2)971/05–06(01)] (February 7, 2006) • Proposed Legislative Framework on Interception of Communications and Covert Surveillance [CB(2)997/05–06(01)] (February 7, 2006) • Submission from the Law Society of Hong Kong on interception of communications and covert surveillance [CB(2)1071/05–06(01)] (February 7, 2006) • Summary of concerns and queries raised by Members at the special meetings on August 15 and October 4, 2005 prepared by the Legislative Council Secretariat [CB(2)971/05–06(02)] (February 7, 2006) • Administration’s paper enclosing its internal guidelines on covert surveillance under the Law Enforcement (Covert Surveillance Procedures) Order and a comparison of the protection provided under the internal guidelines, section 33 of the Telecommunications Ordinance and the Interception of Communications Ordinance [CB(2)2639/04–05(01)] (November 1, 2005) 2004–2005 • Administration’s response on the implications of the ruling of District Court Judge SWEENEY on April 22, 2005 regarding surveillance on the work of law enforcement agencies[CB(2)1657/04–05(01)] • Information provided by the Independent Commission Against Corruption (ICAC) that the judgment delivered by the District Court on April 22, 2005 regarding a case involving interception of communications by ICAC, a summary of the facts of the case and a response regarding the actions, if any, to be taken by ICAC (English version only) [CB(2)1420/04–05(01)] • Judgment concerning surveillance work of the Independent Commission Against Corruption delivered by District Court Deputy Judge Julia LIVESEY on July 5, 2005 (English version only) [CB(2)2280/04–05(01)] • Letter dated July 15, 2005 from the Administration concerning surveillance by law enforcement agencies [CB(2)2315/04–05(01)] • Response from the Independent Commission Against Corruption on the implications of the ruling of District Court Judge SWEENEY on April 22, 2005 regarding surveillance on its work [CB(2)1660/04–05(01)] • Administration response on existing legislation which provided that the commissioner or director concerned could direct and control the respective disciplined services, subject to the order and control of the Chief Executive [CB(2)983/05–06(01)] (October 4, 2005)

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• Administration’s response to issues raised at the special meeting of August 15, 2005 and issues subsequently raised by Hon LAU Kong-wah and Hon Audrey EU [CB(2)2632/04–05(01)] (October 4, 2005) • Background brief entitled “Regulation of surveillance and the interception of communications” prepared by the Legislative Council Secretariat [CB(2)2632/04–05(04)] (October 4, 2005) • Copy of the Independent Commission Against Corruption’s application of judicial review in Criminal Case No. DCCC687 of 2004 provided by the Administration (English version only) [CB(2)277/05–06(01)] (October 4, 2005) • Information sought by Hon LAU Kong-wah in connection with the Law Enforcement (Covert Surveillance Procedures) Order (Chinese version only) [CB(2)2632/04–05(02)] (October 4, 2005) • Information sought by Hon Audrey EU in connection with the Law Enforcement (Covert Surveillance Procedures) Order [CB(2)2632/04– 05(03)] (October 4, 2005) • Summary of concerns and queries raised by Members at the special meeting on August 15, 2005 prepared by the Legislative Council Secretariat [CB(2)2632/04–05(05)] (October 4, 2005) • Administration’s paper on the Law Enforcement (Covert Surveillance Procedures) Order [CB(2)2419/04–05(01)] (August 15, 2005) • Article 14 of the Hong Kong Bill of Rights Ordinance [CB(2)2431/04– 05(05)] (August 15, 2005) • Background brief entitled “Public Service (Administration) Order 1997” prepared by the Legislative Council Secretariat [CB(2)2431/04–05(02)] (August 15, 2005) • Background brief entitled “Regulation of surveillance and the interception of communications” prepared by the Legislative Council Secretariat [CB(2)2431/04–05(01)] (August 15, 2005) • Judgment delivered by the District Court on April 22, 2005 (English version only) [CB(2)1420/04–05] (August 15, 2005) • Law Enforcement (Covert Surveillance Procedures) Order Supplementary Paper [CB(2)2436/04–05(01)] (August 15, 2005) • Paper entitled “Comparison of provisions governing authorization to carry out interception of communications or covert surveillance in the Telecommunications Ordinance (Cap 106), Interception of Communications Ordinance (Cap 532) and Law Enforcement (Covert Surveillance Procedures) Order” prepared by the Legal Service Division [LS103/04–05] (August 15, 2005) • Section 13 of the Post Office Ordinance [CB(2)2431/04–05(03)] (August 15, 2005) • Section 33 of the Telecommunications Ordinance [CB(2)2431/04–05(04)] (August 15, 2005)

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• Statement of the Hong Kong Bar Association on the Law Enforcement (Covert Surveillance Procedures) Order [CB(2)2446/04–05(01)] (August 15, 2005) • Report of the research study on regulation of interception of communications in overseas jurisdictions [RP02/04–05] (March 1, 2005)

Chapter 7

One Country, Two Systems of Policing: People’s Republic of China Gong An1 vs. Hong Kong Police Reform Introduction This book is about policing in Hong Kong, first during the colonial period (Chapter 1) and then during the decolonized period (Chapter 2).2 Its major focus is exploring how the Hong Kong Police (HKP) goes about doing its business, from “Policing Hong Kong: The Early Years” (Chapter 1) to “Policing Hong Kong Police” (Chapter 2) to “Policing Computer Crime in Hong Kong” (Chapter 5). Altogether the book contributes to our understanding of Hong Kong policing in theory and in practice, especially on selected major HKP reform issues, post-1997.

1  In the early days of the People’s Republic of China (PRC) (1949), the police in China was known as gong an or public security. With Deng’s reforms (1979), Chinese public security became known as jing cha or police. Kam C. Wong, Policing in China: History and Reform (New York: Peter Lang, 2009), Chapter 2. The change of name for such a key “instrument of state” was not accidental. The name change registered a fundamental change in policing philosophy, role and function, and in time character, identity and ethos, of the PRC police. The change of name also presaged the coming of age of PRC policing, making it more secular, legal, bureaucratic and professional. 2  Analytically and for the purpose of this discussion, decolonization was a liberation process. The process sought to emancipate the Hong Kong Government (HKG) from British colonial rule. The ultimate objective was independence. Similarly, democratization was a liberalizing process. The process sought to build a Hong Kong Special Administrative Region (HKSAR) based on liberal (democratic) principles. The ultimate objective of HKP reform has been to serve the people, obey the law, respect human rights and promote transparency. A caveat regarding demarcation is in order. In political as with personal relationship development, demarcating the key concepts is a difficult task and an inexact exercise. When does a marriage (decolonization) come to an end and at what point does a juvenile (democratization) become an adult? These are perplexing questions. The difficulty is one of precisely defining and applying the concepts. What counts for decolonization? Does decolonization imply democratization? Can (limited) democratization be carried out under the rubric of colonization? The idea that when colonization ends, democratization begins, still holds.

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In this final chapter of the book, it is fitting to compare police reform in the PRC vs. Hong Kong.3 The PRC Public Security Bureau (PSB) started to reform on the eve of Deng’s “Four Modernizations” of China in 1979.4 The HKP started to reform with the 1967 riots,5 a process that later sped up with the transfer of sovereignty in 1997. The two reforms had much in common, in process (externally driven) and outcome (intransient organizational culture),6 but they also diverged in material and substantial ways. This chapter compares the reform measures and assesses the achievements of the PSB vs. HKP reform. The chapter is divided into five sections. Sections I and II are devoted to describing how the PSB and HKP were “reinvented.” Sections III and IV provide an assessment of the PSB and HKP reforms with survey data and officers’ personal reflections. Section V. “Conclusion” recaps some of the major issues raised and lessons learned from this first-of-its-kind comparative investigation into the “one country, two systems” policing reforms.

3  In as much as Hong Kong is part of China, historically and culturally, it is difficult to see how the study of the HKP can be fruitful and complete without also looking at PRC socio-political development. For example, one might be interested to find out how police development in both the PRC and Hong Kong are affected by Chinese and Hong KongChinese (alternatively Chinese-Hong Kong) culture. 4  Kam C. Wong, Police Reform in China (New York: Taylor and Francis, 2011), Chapter 1. 5  There are various dates and events demarcating HKP reform: after World War II (1945, following the British decolonization plan), 1967 riots (reacting to civil disturbance), 1970s police–public relations campaign (launching the community policing scheme), 1984 Joint Declaration (settlement of Hong Kong’s future), 1992 Governor Patten tenure (liberalization and politicization of Hong Kong) and 1997 handover (“one country, two systems”). Wong Cheuk Yin, “The 1967 Leftist Riots and Regime Legitimacy in Hong Kong,” E-Journal on Hong Kong Cultural and Social Studies 3 (2004). (Ian Scott first suggested that the 1967 riots represented a public challenge to the legitimacy of British colonial rule in Hong Kong. This led to the liberalization of Hong Kong); Chun-yin Cheuk, “Community Policing in Hong Kong: An Institutional Analysis,” DBA Dissertation, Department of Management, Hong Kong Polytechnic University (1999); William Roger Louis, Ends of British Imperialism: The Scramble for Empire, Suez and Decolonization (London: I.B. Tauris, 2006), “Chapter 12: The Critical Phase, 1945–49).” (“Hong Kong Men” started to gain political consciousness in the 1980s and became radicalized in the 1990s due to the impending departure of the British and uncertain meddling of the Chinese.) 6  Allan Jiao, The Police in Hong Kong: A Contemporary View (Lanham, MD: University Press of America, 2007).

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I. Reinventing PRC Public Security Overview Over ten years ago, I started investigating police reform in China. In 2002, I published my first article on the subject.7 This was followed up by Policing in China: History and Reform8 (2009) (“Reform Book I”). The “Reform Book I” provides, in broad strokes, an introduction to the origin, history, culture, education, reform and theory of policing in China. The book provides a new view of Chinese policing, with a special research methodology (inside-out, bottom-up) (Chapter 1) and theoretical framework (mass line policing) (Chapter 8) to match. In the 2002 article, I made three concluding observations with reference to the current status of, future prospects for and research difficulties vis-à-vis police reform in China. With respect to what was then the current status (2000) of police reform, I said: The Chinese public security system is changing in fundamental ways. It is in the process of re-generating itself. The impetus of reform has come from within as well as without the organization. The forces of change have been both economic and social, though political considerations have invariably played a part. The direction of reform has been towards more rationalization, institutionalization and legalization of police service.9

With respect to the future prospects for police reform, I raised the follow questions: Less clear is what does the future hold for police reform in China? In this regard there are two questions that are of most concern: the durability of past changes and the direction of future reform. For example, will the police reform process sustain itself? How fast, how deep and how comprehensive will the reform process be? In what direction and manner will the reform process move in the short and the long term? More significantly, what will the public security system “with Chinese characteristics” look like?10

With respect to the research problems, I made the following observation:

7  Kam C. Wong, “Policing in the People’s Republic of China. The Road to Reform in the 1990s,” British Journal of Criminology, 42(2) (2002): 281–316. 8  Wong, Policing in China: History and Reform. 9  Wong, “Policing in the People’s Republic of China. The Road to Reform in the 1990s,” p. 314. 10  Ibid.

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In this first attempt to investigate police reform in China we find that: we know more about stated objectives and espoused purposes than unarticulated priorities and hidden agenda; we know more about public commitments than private ambitions; we know more about what the Party and central government wanted than what the professional officers and local administrators desired; we know more about official pronouncements than common understanding; we know more about theory, policy, laws and regulations than social reality, street practices and individual idiosyncrasies; and last, but certainly not least, we known more about reported compliance and noted successes than hidden defiance and undisclosed failures. In sum, we know more about the formal and official aspects of the reform, to the exclusion and at the expense of the more important (for our purpose of analysis) unofficial and informal accounts of changes that transpired. An informed and balanced judgment on the future prospect of the current reform process has to wait; for more objective information and properly conducted surveys; not to mention an enlightened perspective and seasoned analysis.11

With the passage of time and increase in knowledge of the field, the above subject matters deserve a second look. Thus this short review of PRC police reform and achievements will revisit the above three observations on the “status,” “future” and “research” of police reform in China, in light of the most recent research findings reported in Police Reform in China (2011) (“Reform Book II”).12 What has been Achieved? Much that was said about the status of police reform in the 1990s still holds true today, i.e., the Chinese police has changed in “fundamental ways” and is in the process of “re-generating itself.” The direction of reform has been towards more rationalization, institutionalization and legalization of police service. What has been achieved in police reform at the end of the 2000s over that of the 1990s includes the following: First, the discovery of a secular police reform ideology. Over the years, there has been a gradual but distinctive shift of political ideology from Deng’s “two hands” (development vs. stability) reform doctrine to Hu’s “scientific development outlook” comprising a harmonious and humanistic approach (see “Background, 11  Ibid. 12  “Reform Book II” (Police Reform in China, 2011) is an extension and elaboration of “Reform Book I” (Policing in China: History and Reform, 2009), but with a different focus and approach. “Reform Book I” is an overview of police reform in China. There I reported on what is known about police reform in China in a systematic way, i.e., mission, values, power structure and status, organization and process, and leadership. More particularly, it sought to lay the necessary foundation for the healthy development of a Chinese police research and discourse field, by debunking myths, proposing method, offering perspective, raising issues and supplying data.

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Vision and Mission of the “Fourth Generation,” Chapter 1, “Reform Book II”). This has moved police reform from a reactive to pro-active mode. Second, the embrace of evidence-based police policy making, drawing upon Marx’s philosophy of dialectical materialism, Mao’s “on practice” action learning theory and Deng’s “seek truth from facts” pragmatic thinking. This placed police reform policy making on a factual-rational basis, amenable to factual disputation, accessible to logical analysis and capable of empirical assessment, away from an ideological straightjacket and into policy analysis (“MPS13 decided that the year of 2002: Change of work style year, investigation year,” see “Introduction,” Chapter 5, “Reform Book II”). Third, the consolidation of the police reform plan, linking political ideology with police reform strategy and policing operation measures under the “Decision regarding strengthening and improving public security work” (November 18, 2003). Police ideology now has to come to terms with grounded problems and emerging issues, in a systematic, comprehensive and coherent manner. Fourth, with scientific study and through trial and error, the Party and Ministry of Public Security (MPS) leaders are becoming seasoned reformers with experience and confidence to match. Chinese police reform is moving into a new phrase, i.e., from fighting bushfires to conducting planned changes. Fifth, police reformers have to come to terms with the structural “contradictions” besetting the reform process, with no end in sight, e.g., the spread of mass incidents (see “Mass Rebellions Against Police Authority,” Chapter 4, “Reform Book II”). Sixth, the single most important achievement of police reform has been in the actualization of governing the police by law (“yifa zhi jing”). Since 1990, the focus has been on the stringent enforcement of police law. The effective implementation of the legal supervision of police started with educating the people and officials about the importance of law, i.e. building up a legal culture. Finally, in terms of accountability, the most significant development is the discovery of supervision by public opinion through the Internet. On December 4, 2009, in a year-end review of notable media-related events, supervision by public opinion through the Internet emerged as one of the most important media stories. To many people in China, supervision by public opinion through the Internet is democracy in action. To the socially aggrieved, economically oppressed and legally wronged, the Internet provides for the “public supervision” of officials and “virtual justice” by netizens. What Lies Ahead? With respect to the future of police reform, two issues present themselves: Ideologically, policing with Chinese characteristics still requires clear and definitive articulation. This remains to be an unfinished but ongoing police reform 13  Ministry of Public Security.

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project. If it is ever going to come, policing with Chinese characteristics is likely to be defined from the “bottom up” more so than the “top down,” with the “top” providing the necessary leadership and the “bottom” setting the basic parameters. Furthermore, policing with Chinese characteristics, to be meaningfully understood needs to be contextualized within a specific time-space milieu. That said, consistent with Chinese Communist Party (CCP) governance philosophy and “mass line” policing theory, it is anticipated that under this broad rubric, there will be many varieties of policing with Chinese characteristics (region by region, e.g., coastal, interior, city by city, e.g., Shanghai, Beijing, Shenzhen) that defy unified treatment by policy makers and warrant different research strategies from academic researchers. Philosophically, can revolutionary policing exist side by side with professional policing? It is now clear that Chinese leadership, especially during the Hu-Wen era, is seeking to re-invent the police by adopting a bureaucratic-legal-professional paradigm (“professional” policing), without explicitly reconciling it with the revolutionary model. Three assumptions are at work to support this marriage of convenience between the “revolutionary” ideal and “professional policing”: (1) The Party leadership considers “professional” police an instrument of the state to serve revolutionary ends, without inherent conflicts, as in the case of the resolute suppression of Falun Gong and negotiated peace making with “mass incidents.” (2) With the Party in the lead, neither “bureaucracy” nor “law” nor “profession” is allowed to stand above the Party and the masses, as autonomous institutions, with entrenched values and culture to match. In this way, a “professional” officer is first and foremost a “revolutionary” cadre. For example, a “professional” officer is one who is responsive, responsible, fair, competent and good mannered, working selflessly for the people, just as Lei Feng would. (3) In as much as “revolutionary” policing is a strategy and style and “professional” policing is an organizational principle, there is no conflict between the two. For example, “yanda” can be carried out by professional police according to law. What Don’t We Know? We still know far too little about Chinese policing, in theory and especially in practice (see Chapter 3, “Reform Book II”) to offer up a comprehensive and definitive assessment of PRC police reform. For example: We know very little about the theoretical and empirical relationship, necessary or contingent, between Chinese political-ideological development, leadership-personality transition, and social-economic change vs. MPS strategy, PSB policing tactics and frontline officers’ behavior. For example, how does a change of political ideology from revolutionary communism (Mao) to socialism with Chinese characteristics (Deng) impact upon the direction of police reform? (see “Research Agenda and Issues (1995–2010),” Chapter 3, “Reform Book II”)? How do successive generations of political and police leadership changes come to affect police work (see “Leadership Footprints,” Chapter 1, “Reform Book II”)?

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We also know very little about what policing with Chinese characteristics is all about (see “Conceptualizing Policing with Chinese Characteristics,” Chapter 5, “Reform Book II”)? In what way is it similar and to what extent is it unique when compared with other Asian police agencies, such as that of Hong Kong? We know very little about what Chinese people “think” and “feel” about their police (e.g., on corruption, see Chapter 5, “Reform Book II”). In the study of policing, understanding what people “think” or “feel” matters, and the latter is more important to know than the former. In theoretical terms, it is more important to know police from the people’s viewpoint from below than from the state’s pronouncements from above. We know very little about how police “insiders” view police reform from the “bottom up” (police on overtime see Chapter 3; “32 Classical Police Sayings,” see Chapter 6, “Reform Book II”). What is the role of front-line PSB officers in the formulation of the MPS strategy? What is the impact of police reform on police officers (see “Impact,” Chapter 1, “Reform Book II”)? Without knowing more, and more systematically, accurately and in depth about what is going on with PS policing, it is very difficult to compare HKP and PRC-PSB reform in any meaningful way. More Research Needed Of all areas of police reform, Chinese police research and publication has experienced the greatest improvement (see Chapter 3, “Reform Book II”). Reading through national and provincial police journals we witness an increase in output and an improvement in quality of police research. We learned that as early as 1992, the MPS had been collecting survey data on public fear of crime. Through the years, Chinese government research institutes (CASS14), police think tanks (MPS Fourth Research Institute), police colleges (PSU), police scholars (Wang Danwei) and academic units (Wuhan – Law School: Center for Protection for the Rights of Disadvantaged Citizens) have been conducting theoretically driven empirical studies on various aspects of policing in China, from extended detention (see Chapter 6, “Reform Book II”) to public opinion on torture. In essence, there is no shortage of data sets and empirical findings to allow us to make some preliminary assessments of police reform in China. What awaits is for Chinabound police researchers to provide (re)analysis of such data (see “A Case Study of Extended Detention in a Mid-China Province,” Chapter 6, “Reform Book II”) contextualized with case studies (see “A Case Study of ED: The Cheung Tsekeung Case,” Chapter 6, “Reform Book II”).

14  The Chinese Academy of Social Sciences (CASS).

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II. Reinventing the Hong Kong Police15 Overview On the eve of the handover there were a number of concerns about how Hong Kong, as a PRC Special Administrative Region (HKSAR), would be administered after 1997. Particularly, how Hong Kong would be policed under PRC rule. The HKSAR Chief Executive had reassured the Hong Kong people and the international community that Hong Kong would remain very much the same. The Commissioner of Police, however, was not satisfied. He wanted to re-invent the HKP to make it one of the most advanced police forces in the world: We will continue to pursue initiatives aimed at improving the management of the Force and how we police Hong Kong … Key areas include working in partnership with the community to prevent crime, providing the public with a high quality of service, improving communications within the Force and with the public and living the values we have publicly declared to hold.16

This mission statement laid the groundwork for HKP reform after the handover. Thus, since 1997,17 the HKP has been engaging in a process of gradual, methodical reform.18 The direction of the reform is provided by the Commissioner of Police’s “Vision, Purpose and Value Statement”: “That Hong Kong remains one of the safest and most stable societies in the world … by … working in partnership with the community … (with) … Dedication to quality service and continuous improvement.” The HKP is gradually being transformed in structure, process and values to accommodate the change in political sovereignty (decolonization) and social conditions (democratization). While the transformation process is far from complete, the vision, direction, commitment and strategy for reform is clear.

15  Research Centre of the Hong Kong Police College, Policing in Hong Kong at the Turn of the Century (Hong Kong: Hong Kong Police College, 2007). 16  Police Public Relations Branch (Hong Kong) (PPRB), “Police Report No. 3: Policing of Hong Kong Unchanged,” Wednesday, May 13, 1998. 17  Reform of the HKP started before 1995 with piecemeal reform on service quality. Particularly, earlier initiatives on a force-wide level began with the Force Strategy on Quality of Service in 1995 and have included the formulation of a force efficiency statement, a Living the Values campaign, staff and public opinion surveys, customer satisfaction surveys, development of Work Improvement Teams, Staff Suggestion and Staff Motivation Schemes, and a Support Network which provides a forum for discussion within the police formations. Off Beat, 621 (December 3–16, 1997). 18  For a summary account of the changes within the HKP since 1997, see Kam C. Wong, “Kinder and Gentler Hong Kong Police,” Hong Kong Standard (HKS), September 10, 1999.

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The following is an overview of the HKP’s effort to redefine itself in the last decade or so. Direction of Change: The Vision of the HKP In April 1996, the Commissioner of Police Eddie Hui Ki-on and his Chiefs of Staff drafted a Vision Statement for the HKP, in light of the impending shift of sovereignty: “The Hong Kong Police Force will strive to respond to the changing aspirations of our community, ensuring Hong Kong becomes a safer and more stable society.” The Vision Statement informs what the HKP stands for; where its ultimate values and interests lie. Basically, the HKP is committed to maintaining political and social stability in Hong Kong while striving for professional excellence, through organizational and cultural changes within the force. To actualize the Force Vision, the Commissioner and his Chiefs identified areas of concern and the following actions required to address them: 1. 2. 3. 4.

examine, reassess and improve the way in which divisions work; improve upon internal communication; ensure that training at all levels reflects and reinforces force objectives; assess internal and external customer needs with a view to developing service level agreements; 5. redefine the force management role, building upon financial delegation and performance management; 6. establish consultancy and support services to give police formations the necessary expertise and contacts to develop their own initiatives; 7. measure performance through developing realistic indicators with input from staff and the public. For the next ten years, respective Commissioners of Police and their senior managers (Chiefs of Staff) were busy at work making the Vision a reality. Changes to the HKP First, changing HKP organizational culture. In order to change the old ways of thinking and doing things, the HKP encourages its staff to “live the values” of the HKP. At its heart, the purpose of the “Living the Values” campaign19 is to change the corporate identity of the HKP by changing the individual disposition, 19  For an internal study of the “Living the Values” campaign, see Charles Doonyee Wong (Assistant Commissioner of the Hong Kong Police Force), Eddie Kam-wah Li (Senior Police Clinical Psychologist of the Hong Kong Police Force) and Michael Siuming Yip (Chief Inspector of the Hong Kong Police Force), “Enhancing Policing Quality and Efficiency through Internal Promotion of Care and Support in the Hong Kong Police Force,” Asian Policing, 4(1) (2006): 63–72.

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organizational culture and institutional values of the HKP.20 As articulated by Deputy Commissioner of Police Tsang Yam Pui: But changing individuals and their culture is far more difficult to achieve than building a structure to improve internal communication … In the beginning some officers may have regarded these campaigns as just gimmicks full of slogans. But gradually the message is setting in and I think they’re working. The same goes for the living-the-values workshops. They are part of an instrument to effect a change of culture in the Force. Honesty, trust and internal communication are three simple subjects. But they are so important that if we can get them right, the Hong Kong Police can be so much better.21

There are eight Force Values that the HKP stands for, namely: a. integrity and honesty b. respect for the rights of members of the public and of the force c. fairness, impartiality and compassion in all dealings d. acceptance of responsibility and accountability e. professionalism f. dedication to quality service and continuous improvement g. responsiveness to change h. effective communication both within and without the force Between 1996 and 2007, seven “Living the Values Workshops” were mounted:22 a. Wave I (1996–97): Force Vision and Statement of Common Purpose and Values b. Wave II (1998–99): Internal Communication,23 Encouragement and 20  The Hong Kong Police Force (HKPF) had been adopting a quasi-military management style, in which strict discipline and absolute obedience were the core values. 21  “Living the Values: The Next Wave,” Police Report No. 2. Issued by PPRB. Wednesday, December 16, 1998, . 22  The first two waves of workshops were conducted by outside consultants. After that a consultant (Professor Paul Kirkbride) was retained to design the workshop package and train officers to run the workshops. Training of workshop facilitators included, “workshops to facilitate formation commanders (Chief Superintendents, Senior Superintendents and civilian equivalents) in December and January 1999, who will then oversee workshops to facilitate inspectorate level officers and civilian equivalents from February to April, followed by Unit Commanders (Superintendents) facilitating workshops for junior police officers and civilian equivalents from May to August.” Ibid. 23  Due to the colonial policing tradition and para-military police organization, free internal communication within the HKP, especially between command and rank and files, is non-existent. One of the big challenges to HKP reformers has thus been to reduce or remove the communication barriers within (silo effect) and between ranks (chain of command problems). Reform measures have included: establishing a Steering Committee on Police

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Support, Integrity and Honesty24 Wave III (2000–2001): Internal Communication, Integrity and Honesty (Table 7.1)25 Wave IV (2003): Enhancing Professionalism and Ethics Wave V (2005–2006): Building a Caring Workforce26 Wave VI (2007): Fairness in All our Dealings.

All the waves involved all officers of the HKP from the Commissioners to police constables. The “Living the Values” campaign was used both as a communication device and as a transformation tool. It clarifies force values as it transforms staff attitude. As the then Deputy Commissioner of Police Tsang Yam-pui said: “We must continually re-assess our performance to ensure that we are measuring up to and following the high ideals that we have set for ourselves.” Table 7.1

Wave III Workshop Schedule

Participant

Facilitator

Time Frame

JPOs, Auxiliary and civilian equivalent

DVCs

Nov 1 – April 30, 2000

SP, CIP, SIP, IP, Auxiliary and civilian equivalent

Formation Commander (CSP/SSP)

May 1 – June 15, 2001

CSP, SSP, Auxiliary and civilian equivalent

Major Formation Commander (ACP)

June 16 – July 15, 2001

The “Living the Values” campaign is part of the HKP integrity management (IM) measures.27 The Force Committee on Integrity Management (FCIM) was established under the Integrated IM Framework. It is chaired by the Deputy Internal Communications (Chaired by DCP – MAN), appointing Training and Staff Relations Officers, introducing staff suggestion scheme, a staff opinion survey, proposed formation bulletins, Senior Directorate visits, and upgrading the Police Email Network. Ibid. 24  Ibid. 25  “Living-the-Values Wave III Underway,” Off Beat, 692 (November 22 – December 5, 2000), . (On November 8, 30 HKI Traffic Officers attended Wave III – Living the Values – honesty and integrity, and internal communication seminar with Acting Commissioner Tsang Yam-pui and Director of Management Services Douglas Lau Yuk-kuen in attendance); “JPOs Spearhead Livingthe-Values Workshops,” Off Beat, 689 (October 11–24, 2000), . 26  Workshop (Wave V) aimed at: looking after the well-being of all HKPF’s members; being a responsible employer (the HKPF); enhancing professional image; increasing the productivity of HKPF as a whole; and reducing the suicide rate in the HKPF. 27  Ethics and Integrity in the Hong Kong Police Force (HKP, August 2009).

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Commissioner of Police (Management) and comprises members from the force’s senior management as well as three Assistant Directors from the Independent Commission Against Corruption. The terms of reference of FCIM include: formulating and developing policies and IM measures, suggesting ways to sustain the Force Values, following up on key issues in managing police integrity and giving directions to address them, as well as monitoring and evaluating the effectiveness of the IM work of the force. In addition, the force appointed Integrity Officers to various formations (LC Paper No. CB(2)1633/09-10(07))28 to be in charge of integrity issues. The core values promoted by the HKP include: personal integrity and honesty,29 respect for the public’s rights, fairness, impartiality and compassion in carrying out duties. In 2010, having examined estimates of the HKP’s 2010–11 expenditure, Legislative Council Member Hon. To Kun-sun asked: “Has the Hong Kong Police Force adopted any measures to raise police officers’ awareness of human rights and civic rights? If so, please list the details of all such measures and the expenditure involved in 2008–09 and 2010–11.”30 On March 16, 2010, CP Tang King Shing answered by pointing out how the HKP has attempted to change the culture of the HKP through “Living the Values Workshops” and “Routine Training.” CP Tang’s detailed response reveals how the HKP goes about changing the culture of HKP officers to respect the human and civic rights of the public: The Force adopts multi-pronged strategies in enhancing police officers’ awareness of the protection of human rights and civic rights. These strategies can be divided into four broad categories: (1) Education “Living-the-Values Workshop”

28  Legislative Council Panel on Security Integrity Management and Behavioural Guidelines of the Hong Kong Police Force (June 1, 2010). 29  HKP behavioral guidelines (December 2009): (a) oppose and report corrupt practices and misconduct; (b) do not get involved in undesirable associations other than in the course of duty; (c) do not compromise or abuse official position; (d) avoid conflict of interest with official duties; (e) protect personal data and classified information obtained officially; (f) be fair and consistent in all dealings and do not discriminate against anyone; and (g) refrain from excessive gambling, highly speculative investments, over-borrowing or getting into a position where debts may become unmanageable. 30  CP Tang King Shing, Controlling Officer’s Reply to Initial Written Question. Examination of Estimates of Expenditure 2010–11. 122 – Hong Kong Police Force. Subhead (No. & title): 12201 – Maintenance of Law and Order in the Community. Question Serial No. 0829, Reply Serial No. SB065.

One Country, Two Systems of Policing With the Force’s introduction of its “Vision, Purpose and Values,” the “Livingthe-Values Workshop” was officially launched in early 1997.Among the eight values set out by the Force, two were “respect for the rights of members of the public and of the Force” and “fairness, impartiality and compassion in all our dealings.” The purpose of the “Living-the-Values Workshop” is to enhance police officers’ understanding and acceptance of Force values. The objectives of the “Living-the-Values Workshop” are as follows: 1. Acknowledge the aims and obstacles of living the values 2. Change the behaviour and attitude of officers for the purpose of living the values 3. Build up the “professionalism” of the Force that officers can take pride in 4. Emphasize serving the public with a heart of care through the joint efforts of the Force management and all officers of the Force 5. Enhance officers’ awareness of and sensitivity to fairness in dealings 6. Enhance officers’ understanding of the application of fair principles and methods in all dealings 7. Ensure that officers attach greater importance to the values of fairness when handling routine matters The estimated expenditure for the implementation of the “Living-the-Values Workshop” in 2010–11 is around $400,000. (2) Routine training The Hong Kong Police College has also enhanced the provision of courses related to human rights and civic rights. The content broadly includes: (1) Courses on human rights-related legislation (including the Basic Law, the Hong Kong Bill of Rights Ordinance (Cap. 383), the Crimes (Torture) Ordinance (Cap. 427), the Race Discrimination Ordinance (Cap. 602), etc.); (2) Courses instilling the Force values (including equal opportunities) into officers; and (3) Courses related to the execution of policing work (including courses on Rules and Directions for the Questioning of Suspects and the Taking of Statements; legal responsibility and police procedures—stop, search, arrest, detain, bail, care and charge of detained persons, and the rights of detained persons; the Victims of Crime Charter) The target audiences of the courses include recruit constables, probationary inspectors, serving junior police officers, and Inspectorate officers and Superintendents. Most of the above courses are taught by instructors who are serving police officers. Besides, instructors from the Open University of Hong Kong will come in person to the Police College to teach basic training course modules such as (1) Social Studies in Policing and (2) Psychology in Policing.

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Policing in Hong Kong In February 2009, the Police College produced a training day item “Discrimination Free” related to the anti-discrimination ordinances with a view to enhancing front-line officers’ understanding of the current anti-discrimination ordinances. In the financial year 2010–11, the Police College will publish a Force publication specifically on the concept and application of human rights in policing work. The expenditure on the training in enhancing police officers’ awareness of human rights and civic rights is part of the training expenditure for the Hong Kong Police College. No specific breakdown in this regard is available.

Second, reaching out to the public.31 The HKP has taken upon itself to engage citizens and staff in its reform process at the management review and policy formulation stages.32 In order to make the HKP more aware of the public and staff’s needs and concerns, customer (public, staff and management) surveys 31  Hong Kong Police Force Customer Satisfaction Survey, 2000. Commissioned By The Poon Kam Kai Institute of Management (PKKI),The University of Hong Kong, . 32  The HKP departed from the traditional colonial/para-military style of order maintenance and crime control policing around 1960 for a number of reasons: (1) Soon after World War II, the British government, at the instigation of the Colonial Office and in accordance with Parliamentary agenda, actively pursued an aggressive decolonization policy, for political and economic reasons. Politically, colonialism was no longer in fashion. Governments were all talking about political liberation and selfdetermination. Economically, Britain, victorious in war, was bankrupt as a nation. In 1947, India and Pakistan declared independence. This was followed by Burma and Ceylon in 1948. The Federation of Malay gained independence in 1957, with Singapore following suit in 1959. After 1963, only two British colonies remained: Brunei and Hong Kong. The policy for decolonization was articulated by the Secretary of State for the Colonies in 1965 to the PM: “At this stage in our Colonial history our main task must be to liquidate Colonialism either by granting independence to a number of territories or by evolving for the others forms of government which secure basic democratic rights for the people With these aims in mind, I have given the following directive to the Colonial Office: a) It is our aim to give independence to every territory which (i) wants it and (ii) is capable of sustaining it.” D.J. Morgan, The Official History of Colonial Development (New York: Humanities Press, 1980), p. 20. (2) The three major civil disturbances between 1957 and 1967 raised concerns with the legitimacy of British rule in Hong Kong. At the very least, the British colonial government of Hong Kong felt that they could no longer take the loyalty and obedience of the Hong Kong people for granted. The HKP was instructed to reach out to the community for approval and support. (3) There was a growing realization among the Hong Kong people that maintaining law and order is not only a police business. People have a duty to assist the police. (4) The transfer of sovereignty, together with the localization process, made HK a permanent place to stay rather than a transient place to visit. As such the public had a duty to work with the police.

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were used as a basis for policy formulation and resources deployment. The “customer” surveys, the first of their kind, were designed to engage the public, staff and management as stakeholders of HKP reform. This customer-oriented approach represents a shift of paradigm in HKP policing strategy. It marks the end of colonial (top-down, control-denominated) policing and the beginning of democratic (bottom-up, service-oriented) policing. For example, the internal Staff Survey (3,500 random sample) shows that HKP staff are very much concerned with effectiveness of communication channels within the force, working relations between different categories of staff and job related stress. All of these matters were deemed unimportant under the colonial administration. The HKP also tried to engage citizens in its reform process at the grass-roots level. For example, 16 Eastern District Fight Crime Committee (EDFCC) members were invited to play an active role in the Customer Service Improvement Project of Eastern Police District by contributing comments and suggestions through observation sessions on report room processes at North Point Police Station.33 Starting in 1973, the HKP took a number of steps to institutionalize a cordial and cooperative police–public relationship, to improve communication, reduce tension and increase trust. The HKP community policing program or “partnering with community strategy” has the following distinctive features:34 • • • • •

decentralization of authority and greater autonomy for front-line officers partnership with the community on crime and quality of life issues community crime prevention schemes high police presence that enhances interaction with the community proactive problem-solving on community related safety and security concerns • systems of local accountability According to HKP Assistant Commissioner of Police Cheuck,35 the HKP reach out to (or partner with) the public in stages: The first stage (1968–73) was the “stage of enlightenment.” In this stage, the HKP sought to reduce HKP–public tension and HKP–citizens mistrust by improving HKP communication with the public, with the establishment of the Police Public Information Bureau.36 33  “Observers Scheme in Eastern Police District,” Off Beat, 625 (February 11–24, 1998), . 34  “Policing in Hong Kong,” Report Series, Community Partnership and Focus, Off Beat, 864 (January 30 – February 26, 2008),. 35  Carlos Wing-Hung Lo and Albert Chun-Yin Cheuk, “Police–Public Projects in Hong Kong: An Evaluation,” Asian Journal of Public Administration, 25(2) (2003): 287– 318. 36  Royal Hong Kong Police Annual Report 1968.

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The second stage (1974–77) was the “community orientation in crime control” stage. In this stage, the HKP sought to enlist public support for police work, especially in crime control.37 The HKP established the Police Community Relations Officer (PCRO) Scheme to explain HKP activities to the public. The HKP also inaugurated the Fight Violent Crime Campaign to reach out to community members and get them involved in fighting crime. The third stage (1978–82) was the “rapid growth of community programmes” stage. This stage witnessed an increased effort by the HKP to enlist the citizens and community for crime control and prevention purposes.38 At this juncture, the PCRO Scheme was expanded to all police districts. The Junior Police Call (JPC) Scheme was established to acquaint young people with police work. The Police School Liaison (PSL) Scheme was established to prevent gangs from infiltrating schools. The Neighborhood Police Unit (NPU) Scheme provided communities with 24/7 personalized police services. The fourth stage (1983–85) was the “retrenchment stage.” During this stage the HKP reorganized and consolidated its community policing programs, efforts and activities, e.g., the NPU Scheme was replaced by a small number of Neighborhood Police Coordinators, stepping back from a community-centered strategy. The fifth stage (1986–89) was the “reassessment stage” brought about by resource constraints. This stage shifted the focus of community policing from public relationship to crime control. The stage is marked by the creation of the Neighborhood Watch (NW) Scheme and the restoration of the PSL Scheme. Finally, community policing as a crime-fighting measure had come of age. The sixth stage (1990–97) was the “re-orientation” stage. This stage focused on the improvement of the police’s public image and the cultivation of a collaborative working relationship with the local community to bring rampant crime under control. These objectives were achieved through the Police’s adoption of its own performance pledge and the revival of the NW Scheme. The seventh stage (since 1998) is the “localization” stage. This stage is transforming the image of the HKP as an alien colonizing force to being a customer-oriented agency serving the community. Third, making the HKP more accountable. In the past, the CAPO (Complaints Against Police Office) was solely responsible to the Commissioner of Police for investigating all complaints of police misconduct. CAPO investigations were not open to the public, and most fell in favor of the police officers. This raised serious concerns over conflict of interest. Expectedly, the public has shown very little confidence in the police investigating itself. In order to address this problem, the existing Independent Police Complaints Council (IPCC) Observers Scheme was introduced in April 1996. The Scheme allows IPCC members to observe investigations. In 1996, the IPCC Observers Scheme was expanded to include lay observers and in July 1998 the HKSAR approved adding 50 lay observers. The 37  Royal Hong Kong Police Annual Report 1974. 38  Royal Hong Kong Police Annual Report 1979.

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IPCC members or lay observers are allowed to conduct “Scheduled Observations” (pre-arranged), or “Surprise Observations” (walk-in).39 Fourth, bringing transparency to police work. Traditionally, how the HKP did its work was not open to the public.40 It was a strictly guarded business.41 For example, HKP criminal investigations were conducted in secret. This led to constant complaints of police abuse and cover up, including coerced confessions, resulting in many failed prosecutions.42 In order to avoid charges of police abuse of the legal process and infringements of citizens’ rights, the HKP introduced the video recording of suspects program. Video interview rooms provide transparency while preserving the rights of those being interviewed. The video taping of police interrogations is done unobtrusively without disrupting the police interview process. Video recordings of suspect interviews conducted by the Hong Kong Police began in 1993 as a pilot project. By the end of 1997 there were 11 of them and now there are 60.43 At last count, about 500 officers at inspectorate level and over 2,000 junior police officers have been trained in the use of video interview rooms and interview techniques. Since then, challenges of videotape testimonies in court dropped precipitously, from 90 per cent to 15 per cent of cases. To date, of the 1,200 statements taken in these rooms, less than 15 per cent were challenged by voir dire, and only half a per cent of the total were ruled inadmissible in a court of

39  Legislative Council Panel on Security Report from the Independent Police Complaints Council. (This paper reports on the salient areas of work of the Independent Police Complaints Council (IPCC) since its establishment as a statutory body on 1 June 2009.) See “Guidance Note for IPCC Observers.” LC Paper No. CB(2)2077/09-10(01), IPCC Secretariat, 2010. 40  Before 1997, colonial policing was not accountable to the people since it was political in nature. Hualing Fu and Richard Cullen, “Political Policing in Hong Kong,” Hong Kong Law Journal, 33(1) (2003): 199–230; “Hong Kong’s Secret Police Files Leaked by Foxy,” Wilki News, August 8, 2008. 41  Peter Yam Tat Wing, “Triads,” UNAFEI, Resource Material Series (116th International Training Course – Visiting Experts’ Papers), 58 (December 2001): 27–38. (Operations against triads need to be kept secret.) 42  Hong Kong Human Rights Monitor, Position Paper. Police Interrogation Practices and Complaints Procedures, January 19, 1996. 43  “Sixty New Video Interview Rooms Help Police Win in Court,” Off Beat, 649 (February 10 – March 3, 1999), . (“The whole idea behind the openness and transparency of the new video interview rooms is to preserve the rights of those being interviewed, while at the same time ensuring that the police interview process (and in turn the Court process) runs as smoothly, fairly, openly and efficiently as possible … Video recording of suspect interviews by Hong Kong Police began in 1993 with a pilot project comprising one video interview room set up in the Organized Crime and Triad Bureau of the old Causeway Bay Police Station.”)

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Policing in Hong Kong law. On the other hand, the challenge-rate of written statements has been up as high as 90 per cent.44

Fifth, improving police work with technology. The HKP is committed to doing more (tasks/functions) with less (staff/resources). Technology is used to enhance performance and productivity. For example, the Police Study Team has saved 147 divisional/sub-divisional cell guard posts with the installation of 427 intercoms in police detention cells at a total cost of $7 million. The intercoms do away with the need to guard low-risk prisoners. Another program for saving manpower hours is the Automated Station Security Pilot Scheme to enhance station security (first tested at Shatin). GIS has been used to map traffic black spots and reduce accidents.45 Artificial intelligence46 and knowledge-sharing technologies47 have been used to investigate crime, and Group support systems (GSS) have been used to facilitate training.48 Lastly, the Computer Assisted Fingerprint Identification System (CAFIS) applies computer technology to fingerprint storage, search and identification procedures. CAFIS has greatly reduced the investigative workload of fingerprint specialists by quickly narrowing the field of suspects and allowing for more time to focus on prime suspects. As a recognition of HKP’s technological prowess and achievements, the HKSAR reported: Hong Kong’s Marine Police was the first law enforcement agency in Asia to adopt the Terrestrial Trunked Radio (TETRA) system, with the voice and location sub-systems completed in 2003, followed by the crime and security department’s sub-system by the first quarter of 2004. Senior Superintendent, Marine Region, Mr Alfred Wong Sui-fat, said the TETRA system handled much more than voice transmission. “We manage to make use of the TETRA wireless radio network to transmit data through the Internet Protocol (IP) so that our system can handle both data and voice transmission.” The innovative application of IP in the Marine Region Communications System (MRCS), which is believed to be the most advanced automatic vessel location and messaging system in the world, helped Hong Kong Police beat off five other strong competitors,

44  Ibid. 45  Poh Chin Lai and Wing Yee Chan, “GIS for Road Accident Analysis in Hong Kong,” Annals of GIS, 10(1) (2004): 58–67. 46  John W. Brahana, Kai P. Lamb, Hilton Chan and William Leung, “AICAMS: Artificial Intelligence Crime Analysis and Management System,” Knowledge-Based Systems, 11(5–6) (1998): 355–61. 47  Peter Gottschalk and Stefan Holgersson, “Stages of Knowledge Management Technology in the Value Shop: The Case of Police Investigation Performance,” Expert Systems, 23(4) (2006): 183–93. 48  Robert Davison, “GSS and Action Research in the Hong Kong Police,” Information Technology and People, 14(1) (2001): 60–77.

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including the police forces of Western Australia and the United Kingdom, to win the “Most Innovative TETRA Service Award” at the TETRA World Congress 2001 held in Nice, France.49

Sixth, changing the authoritarian image of the HKP. The HKP is trying to change its image from one of militarism—muscles, guns and authority—to one of professionalism—intelligence and caring.50 This image rebuilding is warranted both by the daily reality of police work and the new mandate of democratic policing. Street policing is more service oriented in nature than law enforcement. Democratic policing is aimed more at helping the people to maintain peace than imposing on them a preconception of law and order. In this regard, Hong Kong needs thinking and caring police officers more than order takers and quick shooters. For example, in 1998 the HKP launched a television commercial as part of its new recruitment campaign with the slogan: “An Identity to be Proud of.” The new television commercial showed a quick-witted police constable who climbs out to an upper-floor balcony and throws water on two children trapped between a fire engulfing their apartment and the bars on their balcony. Seventh, recruiting better educated and more diverse officers. HKP is attracting more and more university graduates with diverse backgrounds at both inspector and constable levels. Enhanced officers to deal with a more sophisticated public (one in four is now a university graduate, and more and more people are informed of their rights) and complex society (witness the right of abode dispute). For example in a recent police recruits class, 14 out of 420 constables were university graduates with one holding a masters degree in Science from Yale University. Overall, the number of applicants academically qualified to be appointed inspector increased from 8.4 percent of the total number of applicants in 1988/89 to 14 percent in 1996/97. A full 90 percent of inspector recruits are now university educated. The incoming officers have diverse backgrounds from teachers to bankers to nurses to artists to US Army Reserve officers. The major challenge is in training generation Y to accept the traditional HKP role, discipline and culture.51 Eighth, socializing and humanizing police basic training. Traditionally, police training was focused on physical fitness, firearm use, internal security drills, and laws and procedures in court. Increasingly, such kinds of training are found to be inadequate for preparing officers to perform their duties, in the office, on the beat, with investigation, or during a crisis. In order to overcome this difficulty the HKP has taken steps to make police training at Police Training School (PTS) more 49  Civil Service Bureau, “Asia’s Finest Lead the Region into Era of E-Policing,” Showcasing the Achievements of the Hong Kong Civil Service (Hong Kong: Civil Service Bureau, HKSAR, 2005), pp. 16–18, . 50  Wing-Hung Lo and Chun-Yin Cheuk, “Police–Public Projects in Hong Kong: An Evaluation.” 51  “Hong Kong Police Force: Training Gen-Y,” HR Magazine, February 10, 2011.

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“street-wise” and “human oriented.” Starting from June 1998 all police recruits at the PTS have to go through the Community Interface Program. The program is designed to provide the police recruit with a better understanding of how people from different sectors of the community think, communicate and act. This will enable them to perform their duties more effectively. Ninth, providing equal opportunity for female officers. The HKP has a long history of integrating female officers within its ranks. In the past, though, female police officers played more of a reserve and support role to mainline police operations, e.g., station duties. In 1949 Kimmy Koh was appointed the first woman sub-inspector, and in 1951, the first batch of nine women constables passed out of the PTS at Wong Chuk Hang. From the beginning women officers were treated differently, in a male dominated profession. Women officers were relegated to indoor duties, such as in report rooms, performing support roles, such as female custodians, and were routinely sexually harassed as “flower pots.” In the 1960s, the role of HKP female officers changed: In times of crisis, like the great exodus from the Mainland in 1962, women played a crucial role. During that period when tens of thousands of people swarmed over the shallow Shenzhen River, every one of the 273 women in the force was rushed to the frontier. They helped calm the panic and assisted in stemming the human tidal waves. It was the same in the torrid summer of 1967 when women police officers stood firm against rioting mobs. Their presence brought calm to situations that were potentially explosive.52

Since then, female officers have increasingly been treated equally, in pay, duties and opportunities. Starting in 1973, male and female officers were paid the same. In the run up to 1997 and as a result of staff shortages, the HKP began to treat men and women equally. For example, in September 1996 women started to receive Police Tactical Unit (PTU) training. In February 1998, WSP Elsie Wong Mui-kit was made the PTU’s first female Company Commander. PTU training leads to other field careers, e.g. in Emergency Units (EU), and opens doors to promotion, e.g., to division commander. Police promotion review boards look for rounded officers with field and operational experience; a qualification that female officers lacked in the past. On October 1, 1996, Woman Sergeant Lai Choi-king became the force’s first Uniform Branch, female firearms and tactics instructor. The full integration of female officers into the HKP is long overdue. It is required by law as well as being consistent with social trends.53 52  “Police History: Women – An Equal Force, Hong Kong Police Force,” Hong Kong Police Force, . Visited March 23, 2012. 53  Simon Wing-kan Cheung, “The Changing Role of Women Police Officers in the Royal Hong Kong Police during the past 10 Years,” MPA, Dissertation, University of Hong

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Tenth, training with behavioral scientists. Increasingly, the HKP is training its officers to be more sensitive to people’s emotions and psychological needs. This is a sharp departure from the past, when police officers learned how to deal with people on the job and from each other. The HKP now enlists the help of social, cultural and psychological scientists to teach police how to recognize stress and deal with emotional pain. For example, Wanchai Divisional Commander Eddie Ko Chi-ming has organized a series of conflict management training sessions (designed by a Clinical Psychology student and supervised by the Senior Police Clinical Psychologist Eddie Li Kam-wah) in order to minimize unnecessary conflicts and improve upon the quality of service to the public. Eleventh, computerizing the HKP. The HKP is being computerized to increase efficiency, productivity and reduce costs. In 1995, the HKP had only 600 computers. Now it has 7,000 and the number is growing. Recently, a $30 million Sybase system was installed to integrate all databases and streamline data applications throughout the force. Two major computer data processing systems were installed: first, the Formation Information Communal System (FICS), which allows for the storage and retrieval of information gathered from four key areas of police work—public reports, crime complaints, lost and found property, and police custodial records; second, the Personnel Information Communal System (PICS), which improves the efficiency of and access to personnel management information within the HKP. It provides a computerized personnel and training record for each one of the force’s 39,000 staff. The system includes data on establishment and strength, staffing and deployment, staff bios and career management, an action review scheduler, and reports on security and audits. An office automation system with interface to PICS includes details on recruitment, quartering, discipline and health impairment. The first FICS was installed in Wong Tai Sin in October 1996. The rest of the force followed in the next 12 months. Twelfth, initiating proactive and problem-oriented policing. In the past, the HKP pursued incident-driven, reactive policing, i.e., a bushfire-fighting approach. Currently, the HKP adopts a proactive, problem-oriented approach, to deal with the root of a crime problem (e.g., disorganized community) and not only the symptoms (e.g., drug infestations). For example, Tin Shui Wai Police Division placed troubled juveniles with an individualized program of counseling, supervision and self-discipline training. The program was staffed by school representatives, social workers and the Evangelical Church of Hong Kong Social Service Centre. The customized program involved house visits, family conferences, peer counseling, school monitoring and police supervision. Thirteenth, increasing productivity while working with less. The Rennie Report in the late 1980s found that a majority of police officers worked more than 48 hours per week. There were calls to reduce this to 48 hours per week by working more efficiently and productively, e.g. by shortening the briefing and debriefing time before and after patrol. The impetus behind the drive to reduce working Kong (1999).

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hours, aside from improving service conditions in the force, is based on the belief that a properly motivated person can achieve more in a shorter period of time than a person who is not motivated. A trial scheme began in April 1997 to reduce the working hours of Uniform Branch officers in seven land formations (Eastern District, Hung Hom Division, Sau Mau Ping District, Kwai Tsing District, Tai Hing Division and EU, NTS). Now, over 27,000 police officers are eligible to work three hours fewer per week. III. Assessment of PSB Reform Praise When I was conducting my research for Chinese Policing: History and Reform (2009) (spanning a decade, from 1995 to 2005) there were many complaints and little praise for the PSB. With rare exceptions, Chinese police officers were considered unethical, abrasive, corrupt and abusive. Foreign observers54 were more critical.55 During my research for Police Reform in China (2011) (spanning 2005 to 2010), it became evident that the PSB had undergone discernible and demonstrable changes, from organization, to management, to training, to operations, all for the better. For example, a survey and interviews with Chinese police officers in 2005 revealed:56 In the light of increasingly complex policing, Chinese police forces at all levels have made great efforts to improve the quality of service through training and education of police officers. In 2001, the Ministry of Public Security released Principles of Police Training (2001), which provides the framework for police training in China. It emphasizes that all police officers must be trained regularly to enhance effectiveness and efficiency of policing agencies. In 2004, the Ministry of Public Security released another document, The 2004–2008 Police Force Management Compendium (Ministry of Public Security, 2004). It further stresses the important role of training in policing and provides more details about establishing a professional training system and integrating training with performance management.57

54  Wong, Chinese Policing: History and Reform, Chapter 1. 55  Wong, Police Reform in China, Chapter 2. 56  “Paper Code WAN05250 Exploration of Chinese Police Officers’ Perceptions of Training,” Refereed conference paper delivered to the Australian Association for Research in Education (AARE) 2005 Annual International Education Research Conference, 27 November–1st December 2005, Sydney, Australia. 57  “The five interviewees selected in this study were police officers from the Beijing Police Force, who were studying Master of Professional English at one Australian university. This research focused on the exploration of Chinese police training in the last ten years. The

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Furthermore, local police forces in China made efforts to train and educate police officers (Ministry of Public Security, 2005). The Beijing Municipal Public Security Bureau (BMPSB) has regarded training police officers as a priority, especially in preparation for the 2008 Olympic Games. In 2004, The 2005–2008 BMPSB Education and Training Project was drafted. It prescribes police training in terms of levels, contents, population and management. It also highlights the integration of training and performance management (BMPSB, 2005).58

By far the most iconic moment of Chinese policing showcasing PSB reform was the breast-feeding of earthquake victims by a female PSB officer. On May 19, 2008, PSB officer Jiang Xiaojuan (巡警大队民警蒋晓娟) was photographed in uniform breastfeeding earthquake orphans in Wenchau, Sichuan province.59 Overnight Xiao became a national hero. Xiao’s face became that of a transformed PSB; calm and selfless during crisis, loving and compassionate in the line of duty. This is in sharp contrast with the image of corrupt and abusive PSB officials in the mind of the public. In one gracious moment, Xiao changed the image of the PSB: Jiang Xiaojuan sacrificing her milk is a step beyond her duties as an officer. She is taking responsibility for the well being of children that have no way of fending for themselves. As we watch more and more stories like this come out of China I believe we all will acquire a new found respect for China. The officer says that her efforts are a small thing and that they are not really worth mentioning. She seems to think that breast feeding the babies was the only thing to do, as if there was no other choice. Well there were other choices and one of them would be to leave the fate of the children up to someone else. There are some that would have chosen such a route. The actions of officer Xiaojuan are more than worth mentioning. With all of the tragedy in the news around the world, we need to know that there are people out there that have good hearts and are eager to help others. In the midst of clouds of dust and aftershocks, there are people that are willing to do the right thing, even if it is not the easy thing. Breast feeding is not a small feat, especially when a woman is feeding nine babies. I salute officer

interviewees’ experiences in police work ranged from five to 12 years at the time the study was undertaken. As they came from different departments, they had diverse police training experience. All the training programs in which the respondents participated were provided by the Beijing Municipal Public Security Bureau (BJMPSB). The five interviewees were interviewed individually for approximately 30 to 50 minutes in March 2005” (ibid., p.7). 58  Ibid., p. 3. 59  “Dreadful Disaster, Great Motherhood!” www.chinaview.cn, May 19, 2008, 09:59:22, . Officer Xiao was later promoted to Deputy Commissioner. “Three Years of Gratitude and Growth for ‘Police Mom’,” CCTV, May 9, 2011, 16:19.

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Policing in Hong Kong Jiang Xiaojuan and all others that are in China fending off death by helping survivors, big and small make it to the next day.60

In dealing with public disorder and civil disturbances, the PSB was also able to demonstrate professionalism and discipline. In July 2009, a foreign journalist was impressed with the performance of Chinese officers in handling the violent and bloody ethnic clashes between Hans and Uighur Muslims. A note on the performance of the Chinese police during this crisis: from what I’ve seen they have been highly disciplined and professional under extremely challenging circumstances and deserve real praise for this. On the one hand, it could be argued that the police failed in the first instance. Certainly that is the view of many Han people we’ve spoken to who are deeply angry that Sunday’s killing was allowed to take place at all … I don’t claim to be an expert in riot control, but I have reported on mass protests in many different cities around the world … I’m happy to say that China’s police have showed far greater professionalism, discipline and restraint than I’ve observed in many of those places …. Riots are feverish and unpredictable things and it only takes one nervous recruit to lash out (and if you look behind the visors, many of the Chinese police are pretty young) and suddenly a controlled situation can turn very nasty indeed …. All credit to the Chinese foot-soldiers, therefore, who have shown great professionalism and must be applauded for preventing any major further bloodshed after Sunday night. … They are neatly turned out, quiet and orderly when off-duty—for example, they don’t leave a trail of litter after chowtime like India’s police always did. These are small things but they do matter, since they set the tone … If there is any criticism to be made, as outlined in the two points above, it should be directed at the commanders and officials who failed to anticipate events.61

The above media report came from a critical Western journalist, yet this is a strong validation of Chinese police reform achievements.62

60  “Above and Beyond Call of Duty: Officer Breast Feeds Babies in China,” Express Yourself, July 21, 2011, . 61  Peter Foster, “Urumqi: Criticism and Credit for the Chinese Police,” Telegraph, July 9, 2009. 62  Peter Foster, “Han Chinese Mob Takes to the Streets in Urumqi in Hunt for Uighur Muslims,” Telegraph, July 7, 2009. (“Thousands of Chinese protesters armed with axes, machetes and hammers have taken to the streets in Urumqi, Xinjiang, in an escalation of the violence that has claimed 156 lives so far.”) http://www.telegraph.co.uk/news/worldnews/ asia/china/5766327/Han-Chinese-mob-takes-to-the-streets-in-Urumqi-in-hunt-for-UighurMuslims.html.

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Finally, tell-tale signs of PSB transformation are also showing up in some of the most unlikely places, including in personal blogs and social network postings of foreign residents in China. A long-time foreigner residing in Shanghai had this to say about his impression of the Shanghai PSB police: All encounters I’ve had with police in China have been friendly, polite, courteous and, all in all, completely professional even when I have broken the law. This though has not been the case for my encounters with officers of the law in the UK and the USA where no offence was committed but where the police often view themselves as being above the law, and act accordingly …. All of which makes it obvious that the vast majority of those who write about China don’t live in the country and have probably never been there, let alone understand its culture, or even attempt to … Foreigners living in China are more likely to see the better side of policing in China … Overall the average policeman or woman in China is a diligent worker trying to do his or her best for the community, not some tool of the state whose sole purpose in life is to eliminate any challenge to the party.63

The above observation, while rare, is getting noticed more and more. Another foreigner observed that Chinese police, like those everywhere, are doing their best to serve the public, providing that there is no politics involved: Speaking of men in uniform … Today I managed to leave a newly purchased mobile phone behind, sitting on top of an ATM machine. When I went back to look for it, I found the bank security cards [sic] had it safely in their custody, and returned it to me. The mobile phone they did not make “disappear” is worth about half of their monthly salary … In the recent past, I made one of my periodic trips to the local police station to renew my Residence Permit. The cop sitting at the desk has not changed for the past couple years, and we get the job done quickly and pleasantly, no big hassle … Twice I have parted with thieving landlords on, unsurprisingly, really bad terms. “Call the police” kind of circumstances. The first time, the police were quite pleasant, fair, and reasonable. The second time they were decidedly leaning towards supporting my side. In both cases, I did not get any money back, but I did get myself and my belongings safely out of the talons of the local “landed gentry” (if there was ever an oxymoron …). As the representatives of a somewhat repressive one-party state, I would not expect much support from guards / police / military for anyone engaged in antigovernment activity. (For that matter, are there many countries where one would …) But for routine civil matters between individuals in China, I would say any foreigner with a problem should not hesitate to turn to the local constabulary. I have heard of them not being particularly helpful at times, but they should not 63  “Beyond the Buzzwords: Community Policing in China Actually Works,” Shanghai Economist, June 15, 2008.

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Policing in Hong Kong be feared in these circumstances. Unless, of course, your problem is with one of them, someone who is paying them large sums of money, or one of their friends. That, of course, would be several other posts ….64

The above accounts of PSB performances in various capacities show that PRC policing has changed for the better. As to how broadly and deeply, we need to look at some survey data. 1999 Hangzhou Police–Public Relationship Survey In the “mass line” policing state that is China,65 the best assessors of Chinese police reform are the Chinese people themselves, not foreigners.66 In 1999, Hunan Province People’s Police College (“Hunan Sheng Renmin Jingcha Xuexiao”) conducted a survey on police and public relations in an unidentified police district in Hangzhou. The research solicited citizens’/ respondents’ views on five police–public relationship issues with 23 (Likert scale) questions, including: police-public relations; public–police familiarity; public satisfaction; public assistance; police conduct; police law enforcement. The sample size was 200, with 194 responses (response rate of 97 percent) (Table 7.2).

64  “Police: Surprisingly Even-Handed,” Life-in-China Blog, by admin at September 28, 2009, 22:29, . 65  Wong, Policing in China: History and Reform, Chapter 8. 66  C. Hajek, H. Giles, V. Barker, M.-C. Lin, Y.B. Zhang, M.L. Hummert and M.C. Anderson (2008), “Expressed Trust and Compliance in Police- Civilian Encounters: The Role of Communication Accommodation in Chinese and American Settings,” Chinese Journal of Communication, 2 (2008): 168–80. (Survey of American, Chinese and Taiwan students shows that in stepwise fashion Americans are more trusting of the police, than Chinese and Taiwanese students. Findings also indicated that “perceived police officer communication accommodation predicted trust in police which, in turn, predicted attitudes about compliance with police requests.”) Yuning Wu and Ivan Y. Sun, “Citizen Trust in Police: The Case of China,” Police Quarterly, 12(2) (2009): 170–91. (A survey in eight Chinese cities showed: “Younger Chinese and Chinese with lower levels of perceived political power tend to have lower levels of trust in police. Chinese attitudes toward police are also influenced by satisfaction with public safety, governmental capability of dealing with crime, quality of life, and corruption among government officials” (Abstract)); Yuning Wu and Ivan Y. Sun, “Perceptions of Police: An Empirical Study of Chinese College Students,” Policing: An International Journal of Police Strategies and Management, 33(1) (2010): 93–113. (A survey of over 400 PRC college students in two cities revealed: “College students’ global satisfaction with police as well as their specific evaluations of police fairness, effectiveness, and integrity were significantly related to their crime and criminal justice experience, perceived quality of life, and locality. Students’ background characteristics only had a weak effect on attitudes toward police” (Abstract).)

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Sample Profile

Number Percentage Sample population 4,000 100% Sample size 200 5% of population Respondents 194 97% of sample Male 101 52.1% Female 93 47.9% Under 18 9 4.6% 19–35 139 71.6% 36–55 28 14.4% Over 56 18 9.4% Government servant 40 20.6% Worker 33 17.5% Peasant worker 12 6.2% Peasant 14 7.2% Private business 63 32.5% Student 32 16% Junior high 16 8.2% High school 61 31.4% College and above 56 28.9% Source: Extracted from Xu Xiangqun, “Situation, Problems and Countermeasures: An Initial Inquiry into the Police–Public Relationship,” PS, 65 (1999): 43–6, 43.

Overall, a majority of the respondents (89.7 percent) expressed satisfaction with existing police–public relations (Table 7.3). Moreover, the percentage of those who thought positively (very good 8.8 percent; relatively good 27.3 percent) about the relations far outweighed the percentage of those who though negatively (very bad 2.6; relatively bad 7.7). Most of the people (53.6 percent) were neither favorably nor unfavorably disposed. This is disturbing for three reasons. First, while there is no comparative historical data on satisfaction with police–public relations, it can be safely assumed that people’s relationship with the police was much better in the past (in Mao’s time and before the reform) than now. Second, depending on how one sets the benchmark, an “alright” description of police–public relations should not be taken as satisfactory, especially in China where expectations vis-à-vis officials’ conduct are set very high. Perfection is the rule. To most people, “alright” or “so so” is a fail grade. Third, there is a (distinct) possibility that in the Chinese cultural context, “alright” is a not too subtle way of expressing dissatisfaction. In China people do not speak their mind, especially when it is hurtful to others. Instead, Chinese people try to say things and express their feelings in circuitous ways. Fourth, given the high expectations and commitment to good police relations, of and by political and police leaders, “alright” does not constitute a pass grade.

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This lukewarm re-interpretation of a “show case” survey provided by the PSB is compatible with other more scientific foreign studies of the public perception of PRC legal and police officials.67 Table 7.3

Police–Public Relations Overall Assessment

Overall Satisfaction with Police–Public Relations (percent) Very Good

Relatively Good

Alright

Relatively Bad

Very Bad

8.8

27.3

53.6

7.7

2.6

Public Assessment of Police Performance The public was then asked to assess police work performance generally and specifically: in crime fighting, crime prevention and serving society. Most of the respondents were basically satisfied with the police, over 52 percent (alright). However, those who believed that the police were doing a good job (very or relatively) amounted to only 33.5 percent. This is certainly not as high as one might expect. Nonetheless, all told, 86.1 percent of the respondents found police performance to be within an acceptable range (very good, relatively good, alright). People who thought that police work performance was sub-par, i.e., being relatively (11.3 percent) or very bad (2.6 percent), were in the distinct minority (total of 13.9 percent). Tellingly, more people held a very good opinion of police work (7.2 percent) than a very low one (2.6 percent). Thus, unlike what most foreigners believe, police performance in China is far from unacceptable, at least at the city level. By the same token, the data certainly raises the question of whether Chinese leaders are being too critical in suggesting that police have a poor image in the eyes of the public. Turning to special areas of performance, different areas were ranked according to public satisfaction (see Table 7.4): #1 crime fighting (very and relatively good at 49.5 percent), #2 social service (very and relatively good at 37.6 percent) and #3 crime prevention (very and relatively good at 33.5 percent). The police were rated best (very good at 10.3 percent) at preventing crime, then fighting crime (8.8 percent) and then social service (6.6 percent). Due to the small sample size, the difference is within the margin of error (2 responses account for 1 percent).

67  Ethan Michelson and Benjamin L. Read, “Public Attitudes toward Official Justice in Beijing and Rural China,” in Margaret Y.K. Woo and Mary E. Gallagher, eds, Chinese Justice: Civil Dispute Resolution in Contemporary China (Cambridge and New York: Cambridge University Press, 2011), pp. 169–203.

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In critical judgment, the public thought that the worst functions of police performance (very bad or relatively bad) were: #1 crime prevention (15.0 percent), #2 crime fighting (13.9 percent), #3 social service (18.6 percent). Finally, ranked by average (alright) returns: #1 crime prevention, #2 social service and #3 crime fighting. Since we do not know how the questions were phrased, framed or asked, we do not know how to interpret the results, beyond taking them as a rough measure of public perception of police performance. Table 7.4

Ranking Police Performance by Function: Crime Fighting, Crime Prevention, and Social Service Good

Average

Bad

Crime fighting

1

3

2

Crime prevention

3

1

1

Social service

2

2

3

The one clear conclusion we can draw is that most people were happy with police performance, at least not unhappy (86.1 percent overall). Beyond that, again, roughly half the people thought that the police were doing a good job fighting crime (49.5 percent). As to why people think the police are better at crime fighting than crime prevention or social service, it is possibly because the Party and the MPS has made clear, through repeated pronouncements and dramatic actions (“yanda”), that crime is not to be tolerated. PSB Officers’ Concerns: A Disgruntled Workforce?68 Tragedy #1: Police are set up to fail69 It is best that the police are omnipotent. From many sources (I gathered), police must be able to do everything and anything the people want them to do … otherwise, they are considered “of low quality” (“binji dixia”). In practice, police cannot know everything. For example, if a person is sick, people call the police for help … You rush to the scene and the person finally dies. The people will consider the “police have not made all efforts to help.” … But can police treat all illnesses? … On top of regular police duties, the Chinese police need to 68  “Six Tragedies of Being Chinese Police” (“中国警察的六种悲哀”), Author: TACteam Submission date: July 22, 2007, 17:22:14, . 69  Or, the public has unrealistic expectations of the police.

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Tragedy #2: The police cannot hire or retain talented people It is best if the police could have all kinds of talents (working for them). Theoretically speaking this should be the case … The issue is whether the police can attract and retain talented people. Think about it, police officers are paid at the most RMB1,000 a month. Would a person who speaks English fluently work in public security as a common phone operator? If the public security agency tries to retain such a person with high wages, would other phone operators be happy?71

Tragedy #3: Police sacrifices are not treasured Ideally, police officers should be able to put up with all kinds of hardship. … The reality is that we are human and not machine. Even machines … (need) … maintenance. However, this simple logic does not seem to apply to the police. If you become a police officer you are expected to bleed, sweat and even sacrifice your life … Are police lives not worth something? … When a criminal dies of an unnatural death, his family will be paid 300,000 dollars and more of compensation. His family would be given work. His wife and kids do not have to worry about a livelihood. But with you (police officer dying) … 10,000 dollars and it is settled. Your wife and kids’ living expenses will depend on god.72

Tragedy #4: Police are not adequately paid Chinese police pay is relatively low. … The masses and the leaders do not look at it the same way. Years ago, a provincial police bureau chief became our head (now transferred to MPS). He addressed the police officers’ concern with the “treat police well” policy at a police mass meeting in this way: “It is so good to be a police officer. It costs nothing to eat and travel … As to living arrangement we should compare ourselves with workers in the market and people in rural and distressed areas, and not with other police units. There are people out there with nothing to eat and suffer more than the police.” … The problem here is that he is a police chief. He has his own car and is invited to dinner every day. Everywhere he goes he is taken care of … But as common police officers, do we have a designated car or are we invited to dinners? During criminal investigations, we even have to pay out of our own pocket, and at times cannot claim it back. We have to eat $2 lunch box. We spend one thousand dollars of our salary on duty 70  “Six Tragedies of Being Chinese Police,” “Tragedy number one” (“悲哀之一”). 71  Ibid. “Tragedy number two” (“悲哀之二”). 72  Ibid. “Tragedy number three” (“悲哀之三”).

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trips, with no hope for repayment. Back home, our wives are waiting for our salary to pay for rice. The second issue is why can we not compare ourselves with other public servants? We are all government servants. Why are we not treated the same way (in terms of employment)? Why should they (other government workers) be compared with high officials while police officers are compared with the depressed and deprived masses (poor working rural peasants)?73

Tragedy #5: The police are blamed for any and all mistakes When there is an incident, the media will persecute you, the people will yell at you and the boss will blame you. Of course, as a police officer … we should accept public and media supervision … The question is how to deal with police officers when there is a problem (mistake made). … Within the public security agency, there are leaders who would like to … reduce a big problem to a small one, and a small problem to none. This results in problems not being taken care of, and being repeated time and again. Within society, and especially with the media, they like to expand a problem in an unprincipled and unlimited way. This causes the public to think that the police are useless and no good … What should we do? … Who can guarantee that we never make any mistakes in our lives?74

Tragedy #6: Police families suffer alongside the police It is best for the police not to have any relatives. Policing is bitter. Policing is tiresome. Policing is tragic. From the day we join the police, our parents, spouses, and children all have to worry and suffer with us ….75

The above web entry “Six Tragedies of being Chinese Police” (2007) is representative of what most PSP officers think and feel about the PSB reform.76 From the perspective of front-line officers, policing in the reform era is fraught with insurmountable difficulties, with those officers bearing the brunt of the challenges, from unrealistic expectations (#1), to lack of human resources (#2), to personal sacrifices (#3), to being poorly paid (#4), to reaping excessive blame (#5), to family suffering (#6). The officers’ concerns are real, substantial and unlikely to disappear soon. They create morale problems and retard reform progress. The web entry also tells us that there is more than one way to look at and otherwise experience the PSB reform. Stakeholders in PRC and PSB reform do not share similar values and interests, and only converge to achieve mutual benefits. For 73  Ibid., “Tragedy number four” (“悲哀之四”). 74  Ibid.“ Tragedy number five” (“悲哀之五”). 75  Ibid. “Tragedy number six” (“悲哀之六”). 76  “[Hot Topic] Ten Concerns of Guangzhou Police” (“[热门话题]广州警察的十 大困惑”) Author: Grassroots mule (作者:草根骡) 提交日期: October 8, 2008, 22:13:17, .

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example, management police look at the reform in global and abstract terms. Street officers look at the reform in individual and personal terms. Both groups,77 and others in between,78 are not in agreement as to the direction and method, speed and utility of reform, such as, relative cost to and benefit for society, organization, careers and lives. A case in point: on December 1, 2005, a PSB officer (going by the alias “Snow over winter lake” (寒江覆雪))79 posted a blog on Tianya: “[Police Corner] [Opinions and Suggestions] Let us discuss Public Security System Reform,”80 as a result of his involvement in an internal public security (PS) organization reform exercise. The PS reform exercise was about deploying more officers to the front line.81 In the words of LZ: “Explore a little about issues with organization reform and ‘jingli xiaqin’ (警力下沉—downward sinking (deployment) of police power).” The blog attracted 3,147 visitors with 177 responses.82 According to TACteam, a respected and avid police blog commentator observed that there are 77  “‘White Collar’ Agency Police” (Jiguan bailing jingcha – 机关“白领”警察) 作者:q247203512 提交日期, April 18, 2009, 11:22:26, . (The discussion lasted for 48 days, i.e. from April 18, 2009, 11:22:26 to June 6, 2009, 0:24:00. There were a total of 54 entries, seven of them nonrelevant items.) The outsider has a tendency to treat police as a unified and uniform whole. Indeed, police officers often speak with one voice and hide behind a code of silence. But police officers are not all alike in background and outlook. They are certainly not beyond fighting for their own values and interests, advance and survival. The web discussion is now about “street cops” (jiashang jingcha) thinking about “administrative cops” (jiguan jingcha). 78  “Auxiliary Police to Have a Few Words” (“Fujing ya lai suo yiju” – 辅警也来 说一句). Auxiliary police (“fujing” – 辅警) are hired by the police to assist them in the execution of duties. Auxiliary police include security personnel (“lianfengdui duiyuan” 联 防队?), assistant controllers (“xiefang yuang” 协管员) and security guards (“paoan” 保 安). Auxiliary police do not have the power of arrest, detention and search. The ratio of regular to auxiliary police is between 1:4 to 1:11. Auxiliary police work only under the direct supervision of regular police while on duty. “Are Auxiliary Police, Police?” (“Fujing shi jingcha ma” – 辅警是警察吗). Ban Yue Tan (半月谈) 2004年第12期, August 9, 2008, 23:36 . 79  In China, the person who authored the blog is called “lauzhu” or forum master, simplified as LZ. 80  “Police Forum” (警察天地) “Opinion and Suggestions” (意见建议) “Lets discussed public security system reform” (公安体制改革大家来谈). Author (作者): 寒江覆雪 提交日期, December 1, 2005, 21:16:33, . 81  The proper deployment of front line officers was debated as early as 1989 (by MPS). The issue is how to serve the “mass” better by making police accessible (geographically) and available (personally). The tension is between having more police posted (accessible at a short distance), having more police (available around the clock) and more intimacy (bonded locally). 82  Number of visits (访问数):31479 回复数:117.

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substantial differences between top-down and bottom-up-driven reform: “When reform is top-down, people (individuals and groups) with vested interest (are relied upon to) voluntarily share interests with those who have interests and those who have not. When reform is from the bottom up, people (groups) without vested interests force the vested interests to share benefits.”83 Problems with PSB Reform Police abuse of powers By far the biggest obstacle to the successful reform of the PSB is that of police accountability to the law. In practical terms the major issue is how to control police exercise of powers, i.e., use of discretion.84 In theory, the Chinese police are supposed to follow the law strictly (“you fa bi yi”) and to implement the law sternly (“zhifa bi yan”). In practice, the police exercise a substantial amount of discretion, with little meaningful supervision and still less real accountability. For example, Chinese police have near unlimited power to fine people for minor public order offenses (“zhian anjian”). This has led Biddulph, a long-time student of Chinese administrative law, to observe: Despite these efforts, legislation has not entirely displaced pre-reform modes of administrative regulation, either in defining the powers of the public security organs, or in the manner of their exercise. An examination of these detention powers reveals that instructions issued through both Party and administrative channels remain the dominant source of regulatory norms. Because these detention powers are defined the highest levels of generality, public security personnel possess almost unfettered discretion in their enforcement. Due to their legal form, these instruments also escape the legislatively imposed procedural limitations on the exercise of power and legal mechanisms for accountability.85

A case in point is that of extended detention (ED) for investigation. According to PRC official data, over-extended investigative detention is the norm, not exception. More generally, illegal detention—extended detention—is not new, nor is it a small problem in China. For example, in 1986 Chinese official data showed that of the many thousands of “detention for investigation” cases nationwide only 36.3 percent met all legal requirements, with some provinces falling below 10 percent. The illegal detention problem is more prominent in the southern part of China than in the north, e.g., official self-reported data showed that in 1990 83  #8: 作者:TACteam 回复日期, December 2, 2005, 22:23:00. 84  Sarah Biddulph, Legal Reform and Administrative Detention Powers in China (Cambridge: Cambridge University Press, 2007). 85  Sarah Biddulph, “The Production of Legal Norms: A Case Study of Administrative Detention in China,” UCLA Pacific Basin Law Journal, 20(2) (2004): 217–77, p. 224. Available at SSRN: .

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5.7 percent of all arrests in Beijing ended up as illegal/over-extended detention while 23.8 percent of arrests in Guangdong ended up being illegal. Illegal arrest and detention has variously been used as retribution (“yiquan dai fa”), summary punishment (“dai xing”), in aid of investigation (“dai cha”) and in settlement of commercial disputes.86 More recently the NPC Standing Committee for Internal and Judicial Affairs sent six teams to Tianjin, Inner Mongolia, Heilongjiang, Zhejiang, Shaanxi and Hubei in September 2001 to look into how the Criminal Procedure Law was being implemented. The investigation report showed that three years after the new Criminal Procedure Law was implemented,87 over-extended detention of criminal suspects and forced confession were still “salient problems” in many parts of China.88 The lawyers also complained of experiencing difficulties in meeting their clients, problems with accessing court files, and routine denial of legal petitions. Finally, in 2003, the Supreme People’s Procuratorate, under the leadership of Jia Chunwang, engaged in an “overextended detention” clearance (“qingli”) campaign. Specifically, in May of 2003, Jia required that all courts, Procuratorate and police in China clear their detention centers of cases of “overextended detention” or face individual responsibility.89

86  Kam C. Wong, “Police Powers and Control in the PRC: A Reflection of the Lok Yuk Sing’s Case” (November 1, 1999). (Unpublished paper. On file with Chinese Law Program, CUHK.) 87  The new Criminal Procedure Law (adopted by NPC in March 1996, effective October 1997) introduced the principle of presumption of innocence and rights to lawyers. 88  “Extended Detention, Forced Confession Still Salient in Chinese Judiciary: Report,” People’s Daily, December 28, 2002, . 89  In May 2003, a detective team leader, Ye Junting was charged with illegal detention of a criminal suspect for over six days. Ye was sentenced to six months of supervision. On March 12, 2003, a case of stolen explosives and detonators was reported at Henan province Xien county (南省郏县). Detective team leader Ye Junting was arrested for detaining a farmer, Mr. Zhao, for investigation and interrogation on the night of March 21, 2003. The suspect was not released until March 21, 2003, long after the 48 hours he could be legally detained. There was great debate as to the legality and appropriateness of the conviction. One school of thought is that the “overextended detention” was administratively inappropriate, but not illegal. Specifically, the person was arrested legally. The overextended detention was a passive act. The illegal detention complained of is an organizational/structural administrative problem, not an individual behavioral one. The opposing school disagrees. Overextended detention is as much a criminal act as any other illegal detention act. “Clearing of ‘Extended Detention,’ Removed the Obstacle to Judicial Justice” (清理超期 羁押 搬掉司法公正的绊脚石), legaldaily.com, October 30, 2003 .

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The campaign to clear up the nation’s ED was launched with the Supreme People’s Court, “Notice regarding clearing up of extended detention cases” (Fa [2003] #129) which called for a national effort to control ED by 2004:90 All Higher Level People’s Courts should provide a comprehensive and detailed account of ED in their respective jurisdictions, to seriously analyze it for causes of ED, and immediately take effective clean up action, and report to the Supreme People’s Court by August 20, 2003 … especially for those ED lasting more than three years and over, they should be cleared up by the end of 2003, for those ED lasting for one year, they should be cleared up September 2004 ….

On November 12, 2003, The People’s Procuratorate and the MPS joined together to issue the “Guanyu yange zixing xingfa xusong fa, cheshi jiufa chaoqi kouya de tongzi” (“Notice on the stern execution of criminal procedure law, to thoroughly correct and prevent over-extended detention problems”) to foreclose the problem of illegal or over-extended detention. The above Notice was followed by the Supreme People’s Procuratorate’s “Zuigao renmin jianchayuan guanyu zai jiancha gongzuo zhong fangzhi he jiuzheng caoqi kouya de ruogan guiding” (“Certain regulations of the Supreme People’s Procuratorate regarding the prevention and correction of over-extended detention in procurator work”). Between May and December 23, 2003, the Nation’s Procuratorate organs cleared 530 cases of “extended detention,” the police cleared 14,270 with ten remaining, and the court system cleared 7,454 with 1,919 cases remaining.91 In 2004, the Supreme People’s Procuratorate reported ED persons of 4,700 nationwide, on top of 2,187 persons not yet cleared in 2003, making a total national count of 6,887 to be dealt with. The respective justice agencies at different levels and parts of the country have corrected 95 percent of the cases—6,775 people. Basically there is no more ED beyond three years.92 The concerted effort to control ED made by the central government appears to work by official pronouncement. The 2008 Supreme People’s Procuratorate Work Report showed that ED persons have dropped from 24,921 in 2003 to 85 in 2007.93

90  (“最高人民法院关于清理超期羁押案件有关问题的通知 “(法[2003]129号). 91  “Clearing of ‘Extended Detention,’ Removed the Obstacle to Judicial Justice.” (The longest detention case cleared was Xie Hungwu, a Shanxi Yulin Shi, Xing Ye Xian farmer. He was arrested by the police on June 24, 1974. He was declared innocent on December 23, 2003. He spent a total of 28 years in jail for an unsubstantiated charge.) 92  “China Clear Up over Detention Cases,” Daily Yuan.com, November 19, 2004. 93  “Supreme Procuratorate Cleans Up ED, 07 ED Dropped to 85,” ChinaCourt. com (高检清理超期羁押 07年新发超期羁押降到85人次) March 10, 2008 .

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As the saga over ED comes to a close, another problem, with the “illegal jailing” of “letter and visits” petitioners (“xinfang”) to central government, looms.94 Looming PSB Legitimacy Crisis Of all the challenges and issues confronting PRC political leaders and police administrators in the 2000s, the most critical is widespread complaints about police dereliction of duty,95 corruption of office96 and abuse of powers.97 The once symbiotic relationship and intimate bond between the police and the masses has been severely tested, and found wanting.98 From the viewpoint of the public, the police have violated their sacred trust99 and breached communal expectations.100 The public expect the police to live in the spirit of Lei Feng; totally dedicated and completely selfless.101 Instead, they are corrupt and abusive. From the viewpoint 94  “An Yuanding: Beijing Interdiction of Visits, Survey of ‘Black Prison’,” (安元鼎: 北京截访“黑监?”调查) Southern Metropolitan Daily, September 24, 2010. (According to Liaowang Zhoukan, “black prisons” (“he jianyu” “黑监?”) run by private security firms are springing up in Beijing to house those “letter and visits” (“xinfang”) petitioners arriving at the capital. According to an internal report, provinces and cities have established 73 “black prisons” to intercept and return petitioners home. Such interdiction centers can be found at rented premises or hotels.) 95  When asked to rank in a survey the “Most Detestable Conduct,” about 10 percent of the people ranked neglect of duty in the top three (11.9 percent). Stanley Rosen, “The Chinese Communist Party and Chinese Society: Popular Attitudes Toward Party Membership and the Party’s Image,” The Australian Journal of Chinese Affairs, 24 (1990): 51–92, “Table 9: Public Opinion Poll concerning ‘Party Discipline’ (1989),” p. 78. 96  When asked to rank in a survey the “Most Detestable Conduct,” nearly a quarter of the people ranked corruption the highest (23.5%). Ibid., “Table 9: Public Opinion Poll concerning ‘Party Discipline’ (1989),” p. 78. 97  Ibid., p. 78. 98  Huang Demao and Yang Shuyao, “On New Police: Community Relations,” PSU Journal, 66 (1997): 35–8. (In the early years of the PRC, the police–public relationship has been alternatively described as one of “flesh and blood” and “water and fish” (p. 35). (As provided for in Article 3 of the PRC Police Law of 1995, the police is required to obtain the support of the people and maintain an intimate relationship with the people. The police are supposed to listen to the people, receive their supervision and serve their interests.) 99  See Kong Damin,” Guangyi Gongan Lun (Beijing: Qunzhong chubanshe, 2001), “Lun gongan dude,” pp. 146–54. (Morality should inform everything the police do. The law alone does not exhaust all police duties and responsibilities.) 100  Huang Demao and Yang Shuyao, “On New Police: Community Relations.” (The “masses” are too dependent on the police. They have unrealistic expectations of the police, such as that the police are invincible, e.g., the police can resolve all problems and solve all crimes. They are frustrated when such expectations are not met.) 101  “The Story inside Lei Fung Police” (Lei Fung paichusuo nei de gushi), Zhongguo Jingcha Wan, July 31, 2003, .

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of the police, the public is not respectful of or helpful to the police. The police expect the public to behave like model Communist citizens:102 totally altruistic, completely supportive and unfailingly respectful.103 Instead they have been apathetic and antagonistic. Both groups are working on unproven assumptions and unrealistic expectations of each other, and a dated relationship. Whatever the reasons, the growing police–public divide has resulted in a huge legitimacy crisis104 with dire consequences and far-reaching impact on police operations. The police legitimacy crisis is manifested in many ways. There are mounting negative portrayals in the press, increased violent protests in the street, and widespread criticism on the Internet. Such manifestations are worrisome to the political leaders. They register fading trust in communism, tenuous public relations and fragile political stability. Furthermore the legitimacy crisis is reflected in the deterioration of the police’s public image, resistance to police power, mass incidents and public cynicism toward the police. Read in totality, there is clear and convincing evidence of deterioration in the police’s image and decline in police legitimacy resulting in people taking affirmative steps to reject the police, from declining to marry officers, to resisting the police in their duty, to taking up arms in the street.105 102  Most people think highly of teachers (Very Good: 32.7 percent, Good: 44.6 percent). Very little people think highly of Commercial and Industrial Administrative Personnel (Very Good: 2.7 percent, Good: 9.8 percent). Public Security Cadres rank in the middle (8th of 21) (Very Good: 11.8 percent, Good: 28.5 percent) (Rosen, “The Chinese Communist Party and Chinese Society,” “Table 8: The Public’s Image of Various Professions (1988),” p. 77). 103  A survey of workers’ attitudes toward the Party in 1986 finds that over 50 percent believe that few of the Party members are living up to exemplary standards (54 percent), 10 percent believe that they are worse than the masses (ibid., “Table 6: Workers’ View of the Party (1986),” p. 70). In another survey conducted with peasant youths in 1983, respondents expressed a negative opinion of the Party: Party members engaged in “Suppression of Democracy and Retaliation” (47.9 percent); “Corruption and Degeneration” (36.8 percent); “Backdoor Practices” (66.8 percent) (ibid., “Table 7: Young Peasants’ View of Party (1983),” p. 74). 104  Wang Gungwu and Zheng Yongnian, for example, summarize the three sources of legitimacy as development, stability and national unity. See their “Introduction,” in Wang Gungwu and Zheng Yongnian, eds, Reform, Legitimacy, and Dilemmas: China’s Politics and Society (Singapore: Singapore University Press and World Scientific, 2000); Peter Hays Gries and Stanley Rosen, eds, State and Society in 21st-century China: Crisis, Contention, and Legitimation (New York: RoutledgeCurzon, 2004). 105  There is contrary evidence suggesting that the Chinese people have faith and trust in the government and Party. Multi-nation examinations—World Values Survey (WVS) (2001) and the East Asia Barometer (EAB) (2002)—reveal that to the question “Please tell me how much confidence you have in the following institutions,” respondents replied: National government: WVS; EAB: “A great deal of confidence”(39 percent; 63 percent), “Quite a bit of confidence” (58 percent; 35 percent); Party: WVS; EAB: “A great deal of confidence” (30 percent; 71 percent), “Quite a bit of confidence” (63 percent; 27 percent).

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Take the case of the deterioration of public image106 as a proxy measurement of public discontent. In the 2000s, the police were increasingly portrayed in the PRC public media, e.g., CCTV “Jiaodian Fangtan” (Focal point interview and discussion), in a negative light.107 A case study108 on supervision by public opinion (“yulun jiangdu”)109 on “Jiaodian Fangtan”110 shows that the widely popular program was organized into See Zhengxu Wang, “Explaining Regime Strength in China,” China: An International Journal, 4(2) (2006): 217–37, “Table 1: Confidence in National Political Institutions in China, 2001, 2002.” 106  Generally, China is mindful of the importance of public image and has spent a substantial amount of time and money to groom its own image. “China Prepares $6.6b to Improve Image in Foreign Media,” World Focus, January 13, 2009. 107  Hugo de Burgh, “Kings without Crowns? The Re-Emergence of Investigative Journalism in China,” Media, Culture and Society, 25 (2003): 801–20. 108  The research was conducted as a content analysis exercise of “Jiaodian Fangtan” programming between April 1, 1994 and December 31, 1998. All told 1,700 programs were examined and 584 were subjected to analysis based on two criteria: representativeness (daibiao) and impact (hongdong). The sample of programs being analyzed touched upon administration, the legal system, economics, culture, people, villages, reform and feedback. The programs were analyzed in four focus areas, namely pertaining to legal system construction (fazhi jiangshe), government work (zhengfu gongzuo), anti-corruption (fan fubai) and value orientation (jiazhi quxian). 109  Su Baozhong (苏保忠), “An Analysis of a Functional Model of Development in Opinion Supervision: A Perspective on ‘Focus Interview’” (“Yulun jiangdu dui minzhu zhengzhi fazhan de gongneng moshi tanxi – toushi ‘jiaodian fangtan’”), Media Observer (Chuanmei Guancha – 传媒观察), July 7, 2003. 110  “Jiangdian Fangtan” has been variously translated as “News Focus” (Beijing Online), Focal Point Interview (Clearwisdom.net) or “Interview Focus (Asiaweek.com). It is the first of its kind; a national CCTV program featuring investigation into government wrongdoing and abuses. An examination of CCTV history shows that beginning with 1990, “Jiaodian Fangtan” and other similar investigative-supervisory programs such as “Investigative News” (“Xinwen tiaocha”), “Eastern Horizon” (“Dongfang Shikong”), “Speaking about Law Today” (“Jianri suofa”) have proven to be effective in bringing transparency to the political and administrative process, making the Party more responsive and government more accountable. Liu Xuan, “CCTV, Where is China’s TV Aircraft Carrier Going? (“CCTV Zhongguo hankongwujiang zhao nalikai?” CCTV，中国电视的航 空母舰朝哪里开?) Xinhua Net Feburary 21, 2003. “Jiaodiang Fangtan” is very popular with the Chinese public, according to a CCTV survey of the audience. About 1 billion Mainland Chinese watched TV between 8 and 9 p.m. every evening, of which 73 percent watched news programs. Among news programs, “Xinwen Lianbo” (National News Broadcasting) was the favorite followed by “Jiaodian Fangtan” (News Focus). The other program featuring investigative reporting “Dongfang Shikong” (Oriental Horizon) attracted 48.3 percent of the audience as compared with MTV at 51.7 percent (Beijing Online, 74 (January 2000). For a general discussion of “Jiaodian Fangtan” as a CCP policy tool, see “From Propaganda to Hegemony: Jiaodian Fangtan and China’s Media Policy,” Journal of Contemporary China, 11(30) (2002): 35–51. For a critique of “Jiaodian Fangtan” see Yu Jie, “Only Having

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a number of functional models (“gongneng moshi”), namely: Protecting the rights of the people, Protecting the integrity of the legal system, Sunshine (exposé), Value inculcation/orientation (see Table 7.5 below). Table 7.5

“Jiaodian Fangtan” Public Opinion Models in TV Programming: April 1, 1994–December 31, 1998

Moshi

Number (%)

Content

Protecting the rights of the people 维护人民权益功能模式

126 (21.58%)

(1) Maladministration—100 (79.37%)— including illegal administration, policy lapse, ultra vires and administrative errors. (2) Poor administrative work style—18 (14.29%)—including looking down on people, detaching from the public, showing off officialdom, displaying bureaucratism, engaging in authoritarianism, filing false reports. (3) Irregular personnel practices—8 (12.75%)—appointing people based on favoritism, practicing dictatorship and engaging in bribery/corruption.

Protecting the integrity of the legal system 提供制度保障功能模式

158 (27.5%)

The focus is on supervision over legislation, promotion of the law and monitoring over the implementation of the law. Discussion ranges from what law should be passed, how laws have been neglected and misused, and when people are mistreated by law.

Sunshine (exposé) 阳光”功能模式

77 (13.8%)

The focus is on corruption in office, abuse of power and dereliction of duty. Particularly: corruption in judiciary (54 – 70.13%), education (11 – 14.29%), administration (1 – 0.01%), and people self-rule organizations such as village committees (11 – 14.29%).

Jiaodian Fangtan Isn’t Enough,” in Fengtai Qu and Wanquan Shi Jia Yi Hao, Shuo Haishi Bu Shuo (To Say or Not to Say) (Beijing: Wenhua Yishu Chubanshe, 1999). (Investigative reporting is taking up the role of government supervision through a prosecutor and court system.)

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Value inculcation/ orientation 导向功能模式

68* (11.64%) 1994 (9) 1995 (11) 1996 (14) 1997 (13) 1998 (21)

The focus is on how to fight corrupting influences of the capitalistic market economy brought about by Deng’s reform, i.e., from collectivism to individualism, from idealism to utilitarianism, from spiritualism to materialism, from communitarianism to hedonism, with the people and especially amongst the cadres. A total of 70 shows exhibited a clear value orientation function. They were of two kinds: (1) Exposing the problems with extreme selfish individualism, e.g., conspicuous consumption (44 or 62.9%); (2) Lauding examples of socialist morality, e.g., Lei Feng spirit (26 or 37.1%).

Others

155 (26.54%)

There is no discussion of these cases.

* The article has two figures for this functional model, i.e., 68 vs. 70. There was no attempt to reconcile the two. The figure 68 is preferred because this conforms with the sum total of yearly breakdown of programming items.

Police were found to be engaging in all kinds of illegal, abusive and unprofessional activities, including: using power for personal gain (“yi quan mou si”); disregarding human life (“caojian renming”111); committing crimes and doing evil (“weifei-zuodai”112), inquisition by torture (“xingxun bigong”113), conspiring to cause mischief (“xunban zishi”); perpetrating fraud (“nongxu-zuojia”114); possessing a bad attitude (“taidu elie”); dallying with role and status (“wangnong jishou”); engaging in a corrupt lifestyle (“shenghu fuhua”).115 As expected, the reporting of police abuses is appreciated by the public but resented by the police.116

111  The Pinyin Chinese – English Dictionary (Hong Kong:Commercial Press, 2005) (PYCED), p. 66L. 112  PYCED, p. 714R. 113  PYCED, p. 722L. 114  PYCED, p. 502L. 115  “Observing Police Style Construction from ‘Expose’ of Special Cases” (“Cong dianxing anli ‘baoguang’ kan jingfeng jiangshe”), Renmin Gongan Banyue Kan, January 31, 2002. 116  “Observing Police Practice from Typical Cases Exposed” (“Yi dianxing anli kan jingfen jiangshe”), China Police Daily Online, January 31, 2002.

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IV. Assessment of HKP Reforms Praise The HKP is a proud organization. It is known around the world to be one of the most professional—effective, efficient, open, fair—police agencies in the world. The HKP was honored with the title “Royal Hong Kong Police” for its discipline, resolve and skill in putting down the 1967 riots. Since then the HKP has attracted well-deserved praise for its exemplary performances in crime prevention, law enforcement, order maintenance and community services.117 The accolade “Asia’s Finest” followed. Police agencies from all over the world, including China, come to observe and learn from Hong Kong.118 But what do the Hong Kong people think about their HKP? Public Surveys Overall Overall, as reported by the Hong Kong Police Review 2007, public opinion of the HKP, as related by victims (Crime and Its Victims 2005) or the general public (University of Hong Kong – Public Opinion Poll) (HKU-POP) in regard to satisfaction vis-à-vis performance is very high:119 A very high level of satisfaction towards Police performance was reflected in the findings of an independent survey, Crime and Its Victims in Hong Kong in 2005, conducted by the Census and Statistics Department under the auspices of the Fight Crime Committee in 2006. The findings were released in October 2007. Amongst those respondents who reported victimisations to Police, 89 per cent considered the manner of Police staff dealing with them as “good or very good,” while 85 per cent rated the quality of Police service as “good or very good.” Such a high satisfaction rate towards Police performance is consistent with the findings achieved in other surveys, such as the Public Opinion Poll (POP) conducted by the University of Hong Kong on a quarterly basis—with a

117  “Upholding the Law, The Institution of Engineering and Technology,” published June 14, 2011. Interview with Jolly Wong, chief HKP telecommunications engineer. (CC3’s or Command and Control Communications system … cost roughly one billion Hong Kong dollars. Inception began in 2000 and the system rolled out between 2004 and 2006. It’s won a number of technology awards. In my opinion, CC3’s success isn’t just the system itself; it’s the fact that it has transformed the police force that uses it.) 118  Shu-ping Zhang, “Thoughts on the Comparison of Standardizing Law Enforcement between Hong Kong and Mainland Police” (香港与内地警察 执法规范化建 设之比较与思索). Fujian Police College Journal, (2) 2011: 35-40. 119  Hong Kong Police Review 2007 .

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Policing in Hong Kong satisfaction rate of 83 per cent towards the Police performance being scored in the survey conducted in June 2007. This represented a record high rating since the POP began in July 1997.120

How did Hong Kong people feel toward the HKP in 1999? On February 1, 2000 the HKP released the initial findings of a “Public Opinion Survey” conducted on behalf of the HKP by the Hong Kong University in November 1999.121 The survey was conducted via telephone with Hong Kong residents aged 15 years and over. A standard telephone sampling method was used, i.e., telephone numbers were randomly selected from telephone directories together with additional numbers generated by computer. 1,547 successful interviews were conducted representing a 50.3 percent response rate. The objectives of the survey were to identify public concerns and gauge public opinion on those concerns; measure public perception of safety and security in the community; examine Force performance in programme areas; learn how the public formed their impressions of the Force; provide programme managers with high level outcome focused information.122

The content of the survey was drawn from information generated by or relating to focus groups involving members of the public, staff focus groups, force priorities in program areas, and force values and beliefs. When asked “Where do you get your perception of the [force],” respondents replied that they get it “through their own experience” (55 percent), “from television” (40 percent), “in the newspapers” (37 percent), “through friends” (7 percent) and finally by way of “magazines, radio, family members, promotional booklets/leaflets, others” (7 percent). Generally the public had high confidence in the force (74 percent). They were by and large satisfied with its overall performance (62 percent). They considered the force to be professional (73 percent) and efficient (70 percent). However less than half considered the HKP use their resources effectively (43 percent), and the public was very concerned about public accountability (43 percent) and transparency (23 percent). When respondents were asked: “Generally speaking, in terms of law and order, how safe do you feel it is in Hong Kong [in the daytime and at night time]?” Seventy-eight percent said they feel safe in the daytime and only 37 percent said they feel safe at night. Respondents were asked to list, without being prompted, which three areas concerned them most: 613 (39.6 percent) said public order, 138 said burglary and theft; 118 said juvenile crimes; 105 said organized and triadrelated activities; 102 said other violent crimes. 120  Ibid. 121  “Society ‘Highly Confident’ in the Force,” Off Beat, 674 (March 1–21, 2000). 122  Ibid.

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In declining order of performance, the approval rating for the HKP was high in some areas—crowd management, public order maintenance, traffic control and handling emergencies—but they received poor marks for crime detection, crime prevention and community relations: crowd management (74 positive, 16 neutral, 4 negative), maintaining public order (69 positive, 22 neutral, 6 negative), traffic control (65 positive, 17 neutral, 12 negative), handling emergencies (63 positive, 16 neutral, 5 negative), detecting crimes (69 positive, 21 neutral, 8 negative), preventing crimes (49 positive, 24 neutral, 17 negative), community relations (35 positive, 28 neutral, 15 negative) (Table 7.6). Table 7.6

Public Satisfaction with Hong Kong Police Performance

Performance Area Positive Neutral Negative Crowd management 74 16 4 Maintaining public order 69 22 6 Traffic control 65 17 12 Handling emergencies 63 16 5 Detecting crimes 69 21 8 Preventing crimes 49 24 17 Community relations 35 28 15 Source: Extracted from Public Opinion Survey, Hong Kong Police (November 1999) (Hong Kong University)

While most of the respondents were satisfied with the police “999” (emergency) service, they were much less impressed with police presence in the street, as revealed by responses to the questions: “If you needed help, how confident would you be in dialing 999?” (77 positive, 5 neutral, 7 negative) and “Do you think there are sufficient police officers on the street?” (26 positive, 15 neutral, 48 negative). Finally, the respondents reserved their harshest criticism for police conduct and performance. The survey shows that the public were very dissatisfied with the HKP in the following performance areas: against corruption (35 percent positive), protect privacy (29 percent), respect rights (21 percent) and private life (13 percent) (Table 7.7).

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Table 7.7

Public Evaluation of Police Performance

Performance Area

Positive

Neutral

Negative

Willingness to offer assistance

58

25

9

Taking stance against corruption

35

21

18

Protecting others’ privacy

29

17

21

Respecting the rights of persons in custody

21

19

15

Being prudent in their private lives

13

21

17

Source: Extracted from Public Opinion Survey, Hong Kong Police (November 1999) (Hong Kong University)

In response to the question: “Do you think members of the HKPF take unfair advantage of their position as police officers?” most respondents felt that the HKP take advantage of their position and authority at least some of the time: occasionally (42 percent), frequently (7 percent), never (21 percent), rarely (11 percent), and don’t know (19 percent). A closer examination of the HKU-POP surveys on pubic satisfaction with HKP performance over the years (1997 to 2011) reveals that the public think highly of the police, with satisfaction (v. positive and positive) percentage rates in the 60s to 70s, year in year out (Table 7.8). The very positive rating ranges from a high of 16.6 percent (10/2005) to a low of 3.2 percent (7/1997). The dissatisfaction rate (quite negative, very negative) averages around 10 percent, with the very negative rating ranging between 0.4 percent (12/1998) to 6.9 percent (9/2011). In most years it stands below 2 percent. Still, there is a substantial minority (roughly 15–20 percent) who is of the opinion that the HKP is only so-so (“half-half”). The HKP-POP data does not show distinctive overall trends, upwards or downwards. However, the one common pattern appears to be that public opinion seems always to trend downwards during each Commissioner of Police’s (CP) tenure. CP Hui Ki On’s positive rating dropped from 79.4 percent (3.2 percent VP, 76.2 percent P) to 64.4 percent (4.0 percent VP, 60.4 percent P); CP Lee Ming Kwai’s positive rating dropped from 79.1 percent (14.6 percent VP, 64.5 percent P) to 74.2 percent (15.1 percent VP, 59.1 percent P); CP Tang King Shing’s positive rating dropped from 80.1 percent (16.1 percent VP, 64.0 percent P) to 71.6 percent (11.2 percent VP, 60.4 percent P). The drop in rating is to be expected, due to the honeymoon effect, i.e., the public’s fascination with the new giving way to a feeling of becoming tired of the old. Beyond such structural factors, positive vs. negative assessments of the HKP reflected in large part individual CP’s leadership abilities and strategy plans. For example, CP Tsang Yam Pui is the only one who’s rating rose positively from 67.5 percent (5.5

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325

percent VP, 62.0 percent P) to 76.2 percent (10.5 percent VP, 65.7 percent P). The other factor that might have a bearing on a positive vs. negative rating is that of the HKP’s handling of sensational cases. For example, the HKP’s positive rating dropped from 66.8 percent in June 2011 to 56.7 percent in September 2011 and its negative rating rose from 10.9 percent to 19.9 percent in the same period, possibly as a result of the 8/18 incident. (On August 18, 2011, Li Keqiang, the Vice Premier of the PRC visited HKU. The HKP locked down the campus and created security zones. Students complained of being falsely imprisoned. Media claimed they had been prevented from gathering news. Stirred by the media and emboldened by community leaders, the public demanded an explanation and apology from the HKP-CP and HKU head.)123 It is clear from the analysis (Table 7.8) that the HKP, in spite of occasional lapses or crises, is held in high regard by the public, and consistently so.124 For example, the public expressed greater satisfaction with the HKP as an institution than with the Legislative Council (members as a group), and by high margins (Table 7.9). An HKP Officer’s Reflection: A Disgruntled Workforce? On January 1, 1998, a Senior Inspector of Police with 18 years’ experience, mostly with the Marine Division, and in the CID, discussed policing in Hong Kong before and after the changeover.125 On style of policing Policing TSM/Mongkok is not like policing marine. Take triad as an example. TST/Mongkok has a lot of opportunity—prostitution, gambling, drugs. In the Marines there is no such area, not even in Chueng Chau. Triad association and activities are very different. In TST/MK triads and other criminal gangs congregate. They have no fixed bases. People come and go. It is hard to keep track of them. In marine, the police know all triad members. They are all locals and known to local residents. However, as a result of the loose-knit nature of the marine community, the people are not likely to report to the police the known criminal exploits of these local gangs.

123  Kent Ewing, “Battling for Hong Kong University’s Soul,” Asia Times, November 1, 2011. 124  “Hong Kong: Police Torture: Strong Arm of the Law,” Human Rights Solidarity, August 27, 2001, . 125  Informant, Male, BA, MA, 42 years old, SIP Marine HQ./CID/Adm., prior assignment CID HKI, 18 years of service, married, two children.

Table 7.8

Satisfaction with the Performance of the Hong Kong Police Force (per poll)*

調查日期 Date of survey Commissioner In Office

非常滿意 Very positive

幾滿意 Quite positive

一半半 Half-half

幾唔滿意 Quite negative

非常唔 滿意 Very negative

唔知/ 難 講 DK/HS

總數 Total

平均量 值* Mean value*

基數 Base

樣本平均 標準誤差 Standard Error of Mean

13–20/9/2011 Tsang Wai Hung

9.7%

47.0%

20.2%

13.0%

6.9%

3.2%

100.0%

3.4

570

0.1

23–29/6/2011 Tsang Wai Hung

10.5%

56.3%

21.5%

8.1%

2.8%

0.8%

100.0%

3.6

550

0.1

14–23/3/2011 Tsang Wai Hung (Appointed 11/1/2011)

12.4%

58.6%

20.4%

7.0%

1.2%

0.4%

100.0%

3.7

576

0.1

17–22/12/2010 Tang King Shing (Retired 11/1/2011)

11.2%

60.4%

19.1%

5.7%

1.9%

1.9%

100.0%

3.7

998

0.1

14–17/12/2009 Tang King Shing

10.0%

57.1%

20.6%

8.5%

3.1%

0.7%

100.0%

3.6

992

0.1

16–18/12/2008 Tang King Shing

11.3%

51.1%

21.2%

11.2%

3.8%

1.3%

100.0%

3.6

990

0.1

19–24/12/2007 Tang King Shing (Appointed 16/1/2007)

16.1%

64.0%

13.7%

3.3%

1.5%

1.5%

100.0%

3.9

1002

0.1

18–20/12/2006 Lee Ming Kwai (Retired 16/1/2007)

15.1%

59.1%

19.5%

3.6%

1.6%

1.0%

100.0%

3.8

1005

0.1

*  你對香港警察既表現滿唔滿意? (按次計算) http://hkupop.hku.hk/english/popexpress/hkpolice/poll/datatables.html.

25–29/10/2005 Lee Ming Kwai

16.6%

58.2%

18.7%

3.7%

1.7%

1.2%

100.0%

3.9

1005

0.1

18–21/10/2004 Lee Ming Kwai (Appointed 10/12/2003)

14.6%

64.5%

14.7%

3.6%

1.2%

1.4%

100.0%

3.9

995

0.1

19–22/10/2003 Tsang Yam Pui (Retired 31/12/2003)

10.5%

65.7%

16.3%

4.5%

0.8%

2.2%

100.0%

3.8

994

0.1

13–20/11/2002 Tsang Yam Pui

8.8%

62.4%

19.4%

4.8%

1.5%

3.2%

100.0%

3.7

1023

0.1

1–5/11/2001 Tsang Yam Pui (Appointed 1/1/2001)

5.5%

62.0%

21.7%

6.4%

1.6%

2.8%

100.0%

3.7

1062

0.1

14–16/11/2000 Hui Ki On (Retired 1/1/2001)

4.0%

60.4%

23.5%

7.8%

1.6%

2.7%

100.0%

3.6

1007

0.1

6/12/1999 Hui Ki On

9.6%

58.4%

19.9%

8.4%

2.2%

1.5%

100.0%

3.7

503

0.1

1–2/12/1998 Hui Ki On

4.4%

66.8%

20.8%

5.2%

0.4%

2.3%

100.0%

3.7

506

0.1

10/11/1998 Hui Ki On

3.7%

58.6%

28.9%

5.4%

0.6%

2.8%

100.0%

3.6

509

0.1

26–27/8/1997 Hui Ki On

6.4%

72.1%

14.0%

5.2%

0.6%

1.7%

100.0%

3.8

523

0.1

29–30/7/1997 Hui Ki On (Appointed 1/7/1997)

3.2%

76.2%

14.6%

3.5%

1.0%

1.4%

100.0%

3.8

555

0.1

* The mean value is determined by ranking all individual responses and awarding 1, 2, 3, 4 or 5 marks according to their rank at the positive level, where 1 is the lowest and 5 the highest, and then calculating the sample mean.

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Table 7.9

Satisfaction Rate with Legco vs. HKP vs. PLA:

Date of survey Sample base

16– 14– 14– 231821/6/2009 17/9/2009 17/12/2009 25/3/2010 22/6/2010 1,012 1,004 1,000 1,012 1,009

Latest change –

Overall response rate

69.0%

65.4%

70.5%

69.3%

66.7%

–

Finding / Sampling error

Finding

Finding

Finding

Finding

Finding and Error

–

Satisfaction rate of overall performance of Legco members *

21%

21%

18%**

18%

19+/-2%

+1%

Dissatisfaction rate of overall performance of Legco members *

35%**

34%

47%**

49%

51+/-3%

+2%

Satisfaction rate of HKPF *

71%**

63%**

67%**

71%[9]

69+/-3%

-2%

Dissatisfaction rate of HKPF *

7%**

13%**

12%

10%

13+/-2%

+3%[9]

Satisfaction rate of PLA *

58%

59%

65%**

56%[9]

55+/-3%

-1%

Dissatisfaction rate of PLA *

2%

2%

2%

3%

3+/-1%

–

[7]

Note: All error figures in the table are calculated at 95% confidence level. * Collapsed from a five-point scale. ** Such changes have gone beyond the sampling errors at the 95% confidence level, meaning that they are statistically significant prima facie. However, whether numerical differences are statistically significant or not is not the same as whether they are practically useful or meaningful.

On police culture The marine police rarely have any big criminal cases.126 Thus, they take any criminal cases seriously. For example, a missing person case is very routine in a land formation. This is taken most seriously in a marine division. 126  The interesting question is why. Is it because of the close community of the seafarer (living in close quarters, lack of mobility, mutual dependency) and long distance from police help, that the people learn to settle disputes on their own?

One Country, Two Systems of Policing Recently we had a case of a missing person on a cruise ship at sea. The marine police sent two teams of CID to investigate, interviewing everyone on the boat. It was later found that the person fell into the sea. According to his girlfriend he was very drunk that night. He has no known enemy, nor was he involved in any recent disputes with others. A PRC fisherman recovered the body. There was no injury or suspicious circumstances. However, the case is still being investigated.

On police reporting practice Whether a crime report is taken seriously depends on the seriousness of the case and availability of evidence. It also depends on workload. Some stations are busier than others. Some parts of the day or year are busier than others. Similar cases will thus be treated differently in one division/station than another. It is a matter of resource prioritization. In some cases, complaints were disposed of summarily and reports filed from memory later.

On budget cuts and police performance There are good reasons why the police detection rate drops. This has to do with overtime pay for detectives. Currently, police are not paid overtime unless they put in 51 hrs per week for a two-week pay period. Thus they will be working for 3 hrs free before O.T. entitlement, i.e. 6 hours over a two-week period. If a complicated case requiring overtime comes at the end of the two-week period, a police officer has no incentive to investigate.127 Successful investigation requires information. Information is now available from citizens, victims, criminals and informants. Since citizens do not cooperate. Victims do not report. Criminals are less likely to report. Informants remain a productive source. But increasingly informant sources are drying up for two reasons: lack of incentive and fear of exposure. The money made available for informants is now limited. In the old days, informants were rewarded extralegally, e.g. allowed to operate certain vice establishments with the police looking the other way. This is now considered corrupt. Before, police had pot of money from other extra legal sources. Now police have no such resources. Recently, the police have been restricting the practice of paying informants. This is detrimental to police investigation. The police officers cannot now protect their informant sources. They have to register and report their contacts with the informant. This information, while allowing better control, deters informants from coming forward. The police are tempted to violate the rule to maintain relationships with informants. The HKP is also taking a second look at

127  This is confirmed by CIP, SO Kwok Cheung, Shatin.

329

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330

successful informant–police relationship for fear of collusion. This again affects investigation.

On police reform Police reform is not going anywhere. There are a lot of senior officers (“shang da ren”) who like to talk big—“program management” without fully understanding what it means. These senior officers are out of touch with operational reality. Program management does not result in better policing but the appearance of more modernized policing. The computerization does not increase police efficiency or productivity. For example, I was asked to handle a case just yesterday. I could not even get into the computer file of another CID squad to start the inquiry and legal process. The officer in charge of the case-file was nowhere to be found. I ended up frustrated. In some instances, officers from other divisions or squads may not be interested in allowing me access to cases. The compartmentalization of work forecloses cooperation and obstructs investigation. As a result investigation suffers. The computer is restricted by the program to limited input categories, e.g. ring color, ring shape, it cannot be made to accommodate novel descriptions. The categories are too non-specific to be of any use in investigation.

On promotion The HKP experienced a major expansion/promotion just before 1997 when a lot of old/senior/British officers retired. The officers promoted were in their prime, i.e. 30s and 40s when promoted to CI, SP, SSP ranks. These officers will not be promoted because there is no room up top. For example, recently, the HKP has cut off six CSP administrative posts. The administrative functions were taken up by Deputy Regional Commander and SP Administration. The earlier promotion spree and the recent promotion freeze, has meant surely that a lot of officers will be “matching time” (an in place drill movement) for a long time with no prospect of ever getting promoted.

On senior police management I have seen senior management change. In the old days, in the colonial era, the relationship between superior and subordinate was strict, resembling master– servant. Recently, there are calls for openness and transparency. However, the senior officers are not good decision makers. They are indecisive and equivocate on their decision. They are also poor leaders. They are only interested in showing off how fast they can “string” (tie up) their subordinate. They will not be forthcoming in supporting their staff, as the British were before.

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331

Take the case of the CP answering to the Secretary for Security (SS). The CP and SS are paid the same. In the colonial era the CP reported to the Governor. He did not have to report to the SS, who is a civilian officer. A policeman is a military officer. The SS is a civilian officer. She does not understand the intricacies of policing, its culture, ways and means. This is the major problem. Senior officers now manage and do not lead.

On police powers Police used to have a lot of authority and respect. The “bad guys” were afraid of us. One time (1982) when I was in EU, a number of people (eight) were giving us dirty looks and obscene gestures. We (five of us) got out and punished them (beating them up) in the street with people watching. Now, when officers carry out their duties, they are taunted by the “bad guys” and there is nothing we can do but swallow our pride. Unless we come up with some illegality, there is nothing we can do. It used to be the case that the “less than moral” girls loved to be in the company of police officers. Now they all become associated with “bad guys.” Why? What can their police friend do for them? Police cannot protect them. Police cannot speak on their behalf. In time, the society will suffer as a result of reduced dignity and respect for the police.

On police discipline I have no hope for promotion. However I am a professional. I still address people as “Sir” and make way in the corridor for senior officers. However, they should not take advantage of my respect to conclude that I am stupid. I am disciplined and respect their ranks. I once told my superior just that. I am still proud of my work. When I submit my reports I still read them over many times to make them perfect.

Synopsis The most appropriate phrase to capture the essence of the comments made in the above interview is perhaps “when the old (HKP officers) meets the new (HKP),” alternatively “organization and conduct of policing before and after 1997.”128 It is clear from an analysis of the narrative that the informant thought that 1997 128  The interview with the informant, an SIP (middle rank police officer), was conducted three months after the transition of power to China. The formal interview—two hours long (there were many more other causal visits over tea and at his place of work)— with the author (ex-HKP officer, professor to informant) turned into a soul-searching session for an old HKP officer trying to find his personal identity and professional bearing in a new, reformed HKP organization, moving further and further away from the British past. The reformation and transformation of the HKP actually started long before the change of guards on July 1, 1997.

332

Policing in Hong Kong

changed the HKP for the worse, in every possible way, from police management (lack of leadership) to crime fighting (lack of information) to field operation (lack of powers). In fact, the informant had very few positive things to say about the HKP under new management. In this, the informant was not alone. Clearly the informant was not altogether happy about the changes he witnessed in the HKP. In fact, there appears to be nothing about them that he liked, from the HKP image, to command–staff relations, to police power, to discipline, to reform direction and measures, to organizational culture, etc. The HKP is no longer the one he signed up to and worked so hard for. Yet for those officers at his rank and station in life, who have spent a life time in the HKP, there is little else they could or would do. During the interview, his tone, facial expression and body language all indicated a frustrated, dejected, yet still proud and disciplined professional. He said more than once that he would support the mission and leadership of the HKP, in spite of his disagreement, and better judgment. In fact, what kept him going was professionalism, manifested as dedication to the mission, loyalty to senior officers and discipline within the HKP organization. If we accept that the HKP changes were too drastic and too fast, registering the passing of an era and the onset of a new one, then the question is raised as to its impact on and consequences for the old guard. While everyone in the HKP can agree, including the informant, that change is necessary and inevitable, few share the top management’s desire for a complete overhaul of the police along private sector/corporate model lines.129 In fact the question of whether the HKP as a public service and law enforcement agency should be operated like a for profit corporation was never critically examined by the senior leadership and satisfactorily explained to the front-line staff. In the end, the HKP re-engineering operation has been a through and through top-down process, held together by the legendary HKP discipline and can-do spirit. Table 7.10, reconstructed from the informant interview above, shows that the HKP after 1997 is a very different organization than it was before; it is becoming professionalized. Such changes affect old timers drastically. Such changes go to the core values of the HKP from management practices to accountability measures to relations with the public. Officers like the informant are too young to retire, but too old to change career. Caught between the past and the present, the informant has either to put up with or speak out about the change. Since the HKP does not allow for the latter, the former is the only choice.130 This creates a tremendous amount of stress within the HKP, finding expression in low morale. 129  The informant told the author that he was not alone. In fact, he said he is the norm. On a casual visit to his work station, the informant introduced his commander to me. It turned out that the commander had also submitted his letter of retirement. As I listened to his retirement plans, I also got the distinct impression that his retirement was dictated by his circumstance, and not choice. He could have stayed on contract but did not. The Hong Kong Police he loved and served has changed, and leave him behind. 130  As of writing, the informant is preparing to retire. He is studying law in hope of becoming a lawyer when he retires early.

One Country, Two Systems of Policing

Table 7.10

333

Traditional Policing vs. Professional Policing Traditional Policing (Pre-1997)

Professional Policing (Post-1997)

Command and control

Institutional—police

Political – civilian

Senior officers

Leaders Decision makers Personalities

Managers Technocrats Bureaucrats

Style of management

Closed and secret

Open and transparent

Relationship with subordinates

Master–slave

Senior–junior colleagues

Discipline

Strict

Slack

Authority

Little accountability Uninhibited discretion

Strictly circumscribed Rule bound

Relationship to “bad guys”

“Bad guys” fear police

Police fear “bad guys”

Relationship with “immoral “Immoral girls” love “Immoral girls” love “bad girls” police, who offer protection guys,” who offer protection Promotion

Good opportunities

Few opportunities

Informants

Trust police

Do not trust system

Criminal intelligence

Extra-legal money (openended) Bend rules to protect informants

Budgeted (limited) Do it by the book

Computerization

Obstructive

Efficient

Reform

Human management

Program management

Problems with HKP Reform Citizens’ rights explosion? If the obstacle to reforming the PSB is having too little law and too much discretion, the problem with reforming the HKP is exactly the opposite, the public has too many rights and the police has too little authority. From the above discussions, it is clear that the political culture and law enforcement environment in Hong Kong has changed drastically, so much so that instead of the HKP enforcing the law aggressively, ruthlessly and abusively, the citizens now seek more and more rights and liberties, in defying the HKP, to the point of being obstructive, disrespectful and antagonistic. Increasingly, the HKP appears to be weak and powerless in the face of open challenges—including

334

Policing in Hong Kong

obstruction, resistance, insults and assault131—to the officers doing their duties.132 Since the transfer of sovereignty, if not before, the HKP has been consistently criticized by various interest groups for violation of citizens’ rights of one kind or another.133 The impression one gets from reading the news is that the HKP can do nothing right. In 2011, an ex-HKP-CSP, now a columnist, wrote about the deteriorating law and order situation in Hong Kong: Many of my friends, including myself, applauded Tsang’s statement as it shows his strong resolve to maintain law and order, despite heavy pressures to the contrary …. Yes, there are some within our community who are against law and order, especially when they wish to have their say …. Taking a look at recent political demonstrations, they have disrupted public events, and violent protests are becoming more frequent. Indeed, some have even threatened that violence will be the norm in future and they seem to be keeping their word, if the latest incident is anything to go by. If this is what the face of public demonstrations in Hong Kong is to be, then we will need a resolute and well-prepared police force to protect and keep our integrity and reputation as a safe and free city. We need to feel safe to take our children to marches and demonstrations, to educate them on their civic responsibilities, to travel anytime.134

Challenge to HKP legitimacy and authority leads to a diminution of public confidence in the HKP’s resolve and capacity to maintain law and order in 131  Amina Bokhary: Police Brutality the Other Way Around, Asia Correspondent. com, January 28, 2010. 132  “Firm Hand will Ensure Rule of Law,” Hong Kong Standard, March 4, 2011, . (“The new Commissioner of Police Andy Tsang Wai- hung said there would be no apology for using pepper spray during last Sunday’s melee in Central … [“Expecting an apology would be like expecting a fairy tale to come true.”].) 133  “Hong Kong Police Criticized for Arresting Reporters and Rights Observers,” NTD Television, July 14, 2011. ([Milabel Cristobal Amar, Director of Amnesty International, HK Section]:“We want to reiterate that Hong Kong police must respect the observational works of human rights defenders, and the media in covering news. We will be paying close attention and follow this issue.”) 134  Ibid. Mary Ma, “Police Chief Takes Upright Position,” Hong Kong Standard, March 11, 2011. (“Many people have left comments on a number of internet forums praising Tsang. One netizen declared his ‘support for Andy Tsang.’ Another was more humorous, saying: ‘I don’t get jailed, but you do. Does it mean that it’s me having a problem?’ Another netizen sounded more serious, stating ‘there must be law and order in Hong Kong; while society can accept peaceful marches, nobody should use it as an excuse for riots.’ So far, the new commissioner seems to have struck a favorable chord with many people. As I’ve said, protests have become part of Hong Kong’s way of life—earning the territory the tag ‘metropolis of demonstrations.’ But society isn’t prepared to stand by and allow peaceful demonstrations to be threatened by violence.”)

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Hong Kong. It further affects police morale. For example, the immediate past Commissioner of Police, Tang King Shing, was nicknamed “sorry Sir” by the rank and file officers for repeatedly, egregiously and unnecessarily apologizing for police misadventures or lack of performance.135 The incident detailed in the following section was one of many instructive moments on how the HKP–public relationship has changed, for the worse, with the HKP constantly making unreasonable concessions to an aggressive and belligerent public. Challenge to HKP Authority On New Year’s Eve, 2001, three PTU officers on crowd control duties at Tsim Sha Tsui (TST) were caught on videotape exchanging shoves and blows with a number of unruly teenagers (12/31 incident). According to eyewitness accounts, the teenagers were acting playfully in a disorderly manner. When the PTU officers tried to stop them from throwing fluorescent sticks, the teenagers reacted belligerently. A PTU officer was observed on TV pushing one of the teenagers in the face. The teenager slapped the PTU officer in the face at least twice. The incident happened while tens and thousands of people were celebrating New Year’s Eve in a peaceful and joyful mood. According to one account, the teenagers afterward destroyed 3,200 flowerpots placed outside the Cultural Center. On January 2, 2002, Chief Superintendent Koo, the Deputy Regional Commander of Kowloon West Region, who was on scene with the TV crew, gave a different account of the 12/31 incident, which was roundly criticized by the legislators, front-line officers and the public as a whitewash. CSP Koo tried to defuse the situation by saying that there was no police–public confrontation worthy of note. He pointedly remarked that the TV image of police and young people pushing and slapping each other was a misconstruction by all. Particularly, the PTU officer was not shoving the teenager. He was only trying to stop the teenager from throwing more sticks. Nor was the teenager slapping the policeman. He was just “tapping” the officer on his face as a gesture of good will. The incident has since been called the “Happy New Year” incident to mark the disingenuous way CSP Koo tried to talk the case down. Overnight, the 12/31 incident attracted wide debate in Hong Kong over the HKP’s ability to handle public disorder. Most of the attention focused on whether the police handled the incident properly. The public faulted CSP Koo for not being honest in telling the public what really happened. The rank and file officers blamed 135  “No More Apologies as ‘Sorry Sir’ Leaves on Hopeful Note,” Hong Kong Standard, January 7, 2011. (CP Tang King-shing was dubbed the “Sorry Sir” for being the first police commissioner to publicly apologize for HKP wrong doing. In 2009 alone, Tang apologized three times, including mounting undercover anti-drug operations in schools, a detective jailed for a brazen rape of a woman crime victim and using civilian vehicles as “human sandbags” to stop an ongoing illegal road race.)

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the HKP for not dealing with the unruly crowd and defiant teenagers in a firm and forceful manner. In time, the incident turned into an embarrassing public relations fiasco for the HKP. CSP Koo’s account was placed under strict scrutiny by the press, and was found wanting. All told, there were four hotly debated issues. First, whether the PTU officers had acted properly in restraining/assaulting the youths? Second, whether the youth should be held responsible for “slapping” the PTU officer for doing his job? Third, whether CSP Koo had been less than forthcoming in telling the truth? Finally, what should the HKP officers—from command to front-line— do in facing an unruly crowd? This incident revealed much about the HKP’s operational difficulties post1997. The 12/31 incident thus served as a litmus test of how the HKP was doing: organizationally, operationally and socially, after years of reform. First, what does the incident tell us about the mentality and culture of HKP front-line officers in performing public order maintenance duties? Specifically, how should the HKP negotiate between strict law enforcement and tolerance for playful/disorderly juveniles? Second, what does the incident tell us about the mentality and culture of the HKP management in public order operations? Specifically, how to strike a delicate balance between public safety and individual rights? Or, the media’s right to know vs. HKP’s public relations concerns? Third, what does the incident tells us about the role and relationship between senior officers and the rank and file? Specifically, how to safeguard HKP officers’ safety, dignity and morale vs. command, control and discipline of the HKP? How to maintain the institutional authority of the HKP against challenges from libertarians, gangsters, opportunists and politicians, or simply a disorderly crowd and unruly youths? In the end, the 12/31 incident had a lasting impact on the HKP. It affected the HKP’s institutional image. It affected the HKP officers’ self image.136 It affected how the HKP conduct crowd control. It affected how the HKP control disorderly crowds.137 It affected how the HKP deals with troublemakers. It affected the HKP 136  Vivien K.G. Lim, Thompson S.H. Teo and Sean K.B. See, “Perceived Job Image among Police Officers in Singapore: Factorial Dimensions and Differential Effects,” Journal of Social Psychology, 140(6) (2000): 740–50. (A good image is important in any industry or profession, but in few occupations is a good image more important than in the realm of law enforcement—for various reasons); D.E. Gundersen, “Credibility and the Police Uniform,” Journal of Police Science and Administration, 15 (1997): 192–5; E. Krau and L. Ziv, “The Hidden Selection of the Occupational Appeal: The Paradigm of Nurses,” International Journal of Sociology and Social Policy, 10 (1990), 1–28. (Previous researchers have suggested that an important variable that influences a person’s decision to remain in a profession is the profession’s image as perceived by the public.) 137  “20 Killed in Hong Kong Stampede,” Independence, January 2, 1993. (“Twenty people died and 71 were injured when New Year celebrations in Hong Kong turned from celebration to tragedy in the colony’s night-club district. The Governor, Chris Patten,

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and society relationship. It affected command and line relationships. It affected the HKP and media relationship. It affected the HKP and public relationship. The incident, and many others to follow, was symptomatic of what has changed in Hong Kong and with the HKP, post-1997. First, the law enforcement environment has changed. Hong Kong people are no longer a docile bunch. They are now radicalized. They are now encouraged, empowered and emboldened to take on the HKP at every turn on every public issue, large or small, with or without good reason. Second, the relationship between the HKP and Hong Kong citizens has changed. The legal powers of the HKP have contracted as the political powers of interest groups and individual rights of the citizens have grown. Third, the ability and capacity of the HKP to control public events, maintain order and enforce law is being increasingly tested, and in some cases found wanting. Finally, policing in Hong Kong has been effectively politicized by a few ideological activists and interest groups bent on transforming Hong Kong into a Western democratic state. Many self-serving politicians want to attack the HKP for personal gains.138 Citizen Activism and Politicization of the Public More recently, especially after the negotiated return of the colony, but also during the transition period (starting with the 1980s), Hong Kong people’s political activism has un-mistakenly been on the rise. The public’s outcry against government officials has grown. Increasingly, Hong Kong people are becoming more politicized. For example, complaints against police brutality and abuse of power have become more rampant and vocal. On February 1, 2000 the HKP released the initial findings of a “Public Opinion Survey” conducted in November 1999 by the Hong Kong University on behalf of the HKP. The survey noted that citizens thought the HKP have shown very little regard for people’s privacy and little respect for suspects’ rights (see Table 6.1).139

ordered an inquiry yesterday, saying lessons must be learnt before the Chinese New Year festival in three weeks’ time.”) 138  In throwing a June 4 T-shirt at CP Tsang at a Legco meeting, lawmakers “Long Hair” Leung Kwok-hung and Raymond Wong Yuk-man were trying to score political points with their constituents. “Save Misguided Souls,” Hong Kong Standard, Monday, September 19, 2011 (“Lawmakers ‘Long Hair’ Leung Kwok-hung and Raymond Wong Yuk-man are no better”); “Mad Dog Hot under the Collar Again,” Hong Kong Standard, Tuesday, August 30, 2011. (“Raymond Wong Yuk-man is up to his old tricks. The lawmaker threw a shirt at Commissioner of Police Andy Tsang Wai-hung at yesterday’s Legislative Council security panel meeting.”) 139  “Society ‘Highly Confident’ in the Force,” Offbeat.

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The outburst of negative sentiments against police abuse of power resulted as much from the democratization of the political process—e.g., the introduction of popular elections140—as it did from the Hong Kong government’s attempt to introduce a more service-oriented—responsive and responsible— administration—e.g., the adoption of a performance pledge. This was facilitated by a free141 and aggressive and, according to some, irresponsible press.142 It is now commonly acknowledged that newspapers play a significant and instrumental role in registering, shaping, creating and/or reinforcing public opinion on police misconduct.143 For example, the Hong Kong press and media are much more aggressive these days, conducting investigative reports if needed—for example “230 Police Keep Tight Rein on 15 Li Peng Protesters.”144 More evidence of the politicization of the public can be gathered from an analysis of local newspaper news. A systematic examination of the Hong Kong press finds that between April 1999 and February 2000 the South China Morning Post (English) reported on the following stories of police accountability and abuse of power: 1. The Secretary for Security has refused to introduce legislation to supervise the HKP properly even when the Law Reform Commission has recommended more restrictive law controlling police exercise of power, e.g. requiring police officers to have reasonable grounds before stopping, searching or arresting people. The Secretary declined to act due to “no time and resources” even though the Hong Kong Government promised in June 1997 that relevant and appropriate legislation would be introduced within three years.145 2. The Legco Public Works sub-committee challenged the HKP for excessive spending in their plan to spend $3.2b to redevelop the police HQ in Wanchai as an imprudent use of resources.146 140  Frontier, “Full Popular Election,” Apple Daily, March 29, 1999. 141  Hong Kong Journalist Association and Article 19, 1998 Report on Freedom of Expression in Hong Kong One Year after the Handover (Hong Kong: Hong Kong Journalist Association and Article 19, 1998). 142  “Media Ethics: The Way Forward,” Survey Result, November 13, 1999. (Selfsurvey results (178 respondents) show that most journalists are concerned with media ethics issues: 47 percent (84) with sensational or disgusting photographs; 43 percent (77) with too much sex; 41 percent (73) with exaggerated reports; 39 percent (70) with too much “infotainment.”) 143  T.J. Flanagan and M.S. Vaughn, “Public Opinion about Police Abuse of Force,” in William A. Geller and Hans Toch, eds, Police Violence: Understanding and Controlling Police and Abuse of Force (New Haven, CT: Yale University Press, 1999), pp. 113–31. 144  South China Morning Post, September 24, 1997. 145  Ouinton Chan, “No Time for Laws on Police Abuses,” South China Morning Post, February 2, 2000, p. 6. 146  Susan Shiu, “$3.2b Plan for ‘Luxurious’ HQ Attacked,” South China Morning Post, January 1, 2000, p. 8.

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3. The HKP were contemplating installing CCTV in detention jails after the death on March 20 of a teenage suspect (18-year-old Li Ka-ming) in police custody at Sheung Shui Station. The inquest jury recommended that CCTV be installed in all police holding cells.147 4. HKP senior management has been acting personally and vindictively in silencing dissenting voices and sanctioning people unfriendly to the HKP. A group of auxiliary police claimed that HKP chiefs have tried to stop Legco member Chan Yuen-han in her effort to fight for rights of the Hong Kong Auxiliary Police from being cut in seize and patrolling duties.148 5. Police used excessive and illegal force in the arrest of two persons. The CAPO started investigating a case of excessive force and physical assault complaint in the arrest of Kan Kwok-hung (27) and Kan Kwok-shing (26) in Ping Chau. The incident started as officers of the Marine Crime Unit tried to arrest three youths in connection with criminal charges. This led to 100 people blocking the police station.149 6. The Commissioner of Police has not been fair and stern in disciplining senior police officers found guilty of abuse of power. Chief Superintendent David Thomas was found guilty by the CAPO of having abused his authority in sending police officers under his command to harass a fellow social club associate at her school in January 1999. The Commissioner of Police declined to discipline the officer but referred the case to the Civil Service Bureau for final disposition instead. The IPCC has criticized the decision as too lenient.150 7. The HKP have not been able to control police officers from violating rights of suspects and criminals. “There have been too many accusations of beatings in custody, and too many sudden deaths in police cells, for the public to accept that proper procedures are always followed when suspects are questioned.”151 8. The IPCC could work better and more effectively with the appointment of many more independent observers to CAPO complaint investigations to augment the busy IPCC members.152 147  Lydia Ho, “Closed Circuit TV in Police Cells ‘Seriously Considered’,” South China Morning Post, December 24, 1999, p. 4. 148  Stella Lee. “Police Tried to Censor Lawmaker,” South China Morning Post, December 11, 1999, p. 6. 149  Clifford Lo. “Officers Beat our Two Sons: Couple,” South China Morning Post, December 12, 1999, p. 6. 150  Stella Lee, “Chief’s Rebuke for Top Officers ‘too Lenient’,” South China Morning Post, n.d., p. 3; Stella Lee, “Police Chief Hands Over Discipline Case,” South China Morning Post, November 23, 1999, p. 5. 151  Editorial, “Path to Truth,” South China Morning Post, September 9, 1999. 152  Stella Lee, “Checks to be Increased on Police Complaints System,” South China Morning Post, September 1, 1999, p. 4.

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9. The HKP should improve upon its record in treating citizens with more politeness. It was noted that more than half of the complaints against police in the last 17 months concerned rudeness or offensive language. For example, one officer said to a driver when giving him a fixed penalty ticket: “Paying this won’t be a big deal to you. You must have a lot of money, driving about in a BMW.” An old lady complained that the police said to her: “It is no good praying to god. Put the joss stick out.”153 10. An HKP officer even complained against fellow HKP officers. A woman police inspector on anti-burglary duty asked an off-duty sergeant for his ID because he looked like an immigrant. The IPCC found the case unsubstantiated.154 A cursory reading of the newspapers reveals that the HKP is in deep trouble. The idea that the HKP has mounted a relatively successful effort to reform itself from within is certainly not apparent. Nor does the reader get any idea of the HKP’s various achievements attained over the course of the eight months being reported. The apathetic people of Hong Kong have been awakened. It is high time the HKP were prepared to face the political music even if it does not know how to dance to the political tune. V. Conclusion Before reflecting on the comparative exercise as a whole, I would like to engage in a discussion of three prominent issues raised by this investigation into to HKP vs. PSB reform: 1. What are the driving forces behind Hong Kong vs. PRC police reform? (“The Forces of Police Reform: Political or Social?”); 2. How does colonial policing hamper HKP reform? (“The Process of Police Reform: Community Policing in the Shadow of Colonial Policing”); 3. What can the PSB learn from the HKP in balancing collective interests and individual rights? (“The Lessons of HKP Reform: Balancing Collective Interests and Individual Rights”). The Forces of Police Reform: Political or Social? In his keynote speech at the 3rd Annual Meeting of the Asian Association of Police Studies on Asian Policing in the 21st Century in 2002: “Policing in Hong Kong:

153  Ibid. 154  Stella Lee, “Sergeant Looked Like Migrant, Says ID Check Inspector,” South China Morning Post, April 28, 1999, p. 3.

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Continuity and Change,”155 Mr Dick Lee, HKP Deputy Commissioner of Police (Management) in charge of HKP reform, took the position that HKP reform in the last two decades has been an evolutionary and not a revolutionary process. As to process of change, Lee asserted that HKP reform was not driven by a single factor (decolonization) or event (1997 transfer of sovereignty). Many factors— economic, social and political—played a part. Together, they have interacted and converged to energize, sustain and shape the HKP reform. As I have observed: “The changes resulted as much from the reversion of political sovereignty as it is from the transformation in social conditions. The forces of reform/change come from within the police, e.g., enlightened organization leadership, as from without the society, e.g., transformed social values.”156 In terms of forces of change, Lee opined that HKP reform was driven less by a change in political fortune, i.e., Hong Kong returning to the PRC, than having to adjust to evolving social conditions, such as domestic demand for democracy, and being influenced by emerging policing trends, such as global best practices in community policing. Lee further observed that reform and change have been a constant feature of the HKP throughout its 150-year history. As an institution, the HKP anticipates rather than reacts to environmental changes. Furthermore, continuous self-improvement is a standard operating procedure with the HKP. As an analytical approach, Lee cautioned against paying too much attention to simplistic and superficial explanations of HKP reform, thereby falling prey to reductionist and essentialist arguments. As an alternative, Lee called for the studying of the HKP in a broader historical, social, political and cultural context. Lee’s position, while contrary to conventional wisdom, is a refreshing one. As a major controller of HKP reform, Lee’s view should be seriously entertained.157 As I observed in another quarter: I strongly endorse Lee’s effort, and am much challenged by his idea, that there is a need to pierce the myth, at least debate the conventional wisdom, that somehow 1997 made all the difference to HKP as an institution; philosophically, 155  In Kam C. Wong, ed., The 3rd Annual Meeting of Asian Association of Police Studies. Asian Policing in the 21st Century: Proceeding Papers (Hong Kong: AAPS, 2002). 156  See “Discussion Paper – Keynote Forum: Police and Policing in Hong Kong after 1997: Continuity and Change” (April 18, 2002). The difference between DCP Lee and me is one of relative focus. Lee thinks that the political (1997) factor is tangential to the HKP reform debate, other factors (social, organization, professional) being more prominent. I feel that the political factor, while not being the only factor to consider, is one of the more important factors in understanding HKP reform and transition. 157  My reading of police “insider” accounts of police performance is one of guarded skepticism. Guarded because police research should be evaluated, as with all other research, on the appropriateness of its research design and validity of its findings, by insiders or otherwise. Skepticism because police “insiders” might have an ax to grind. Alternatively, police insiders might be subject to institutional bias or political influence.

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However, notwithstanding Lee’s insight, the dominant thesis on HKP reform that “Police and policing in Hong Kong have changed substantially, and in some instances radically, after 1997, e.g., moving from colonial policing to community policing”159 still attracts a considerable following, and not without some theoretical and empirical support from insiders160 and outsiders alike.161 How might such contending viewpoints be reconciled? The best way forward is to observe that Hong Kong as a political economy is unique unto itself. Through the years, Hong Kong was administered less as a colony and more as a free trade port. As such, the HKP is charged with the duty to maintain security, law and order, and not to promote or defend a certain political ideology. Such HKP missions survived the change of sovereignty under Deng’s “one country, two systems” formula intact. Thus, major political reform to the HKP was not necessary. The paper “Market Economy and Policing in Mainland: Challenges and Changes,”162 by President Yang Jun of the Armed Police University and Professor Mei Jianming of the Chinese People’s Public Security University, made for interesting comparative study in the light of Lee’s HKP reform article. Both articles address the same issues: how have external changes—environmental, political or social—come to affect the internal structure and processes, and external operation and conduct of the police?

158  Kam C. Wong. Notes to AAPS “Keynote Forum” Meeting of April 18, 2002. 159  In the context of this ongoing debate, it is regrettable that “community policing” (CP) has not been conceptually defined and theoretically explicated to fit the Hong Kong policing context. Depending on how CP is understood, it can be deployed as a colonial or post-colonial strategy. Conversely, both colonial and post-colonial policing can use CP as an instrument of supervision and control. 160  Y.K. Tsui, Problems of a Para-military Police Force in a Changing Society: A Case Study of the Royal Hong Kong Police Force (Hong Kong: Chinese University of Hong Kong, 1979) and The Promotion System in the Officer Cadre of the Royal Hong Kong Police (Hong Kong: Hong Kong University, 1982); Stephen Ho, Administrative Reform in the Royal Hong Kong Police (Hong Kong: Hong Kong University, 1989); Louisa Chu, Role and Structure of RHKP in the Transitional Period (Hong Kong: Hong Kong University, 1991); Albert Cheuk, Community Policing in Hong Kong: An Institutional Analysis (Hong Kong: Hong Kong University, 1999). There are others. 161  Q.M. Ng, Bureaucratic Response to Political Change (Hong Kong: Chinese University of Hong Kong, 1991); Kam C. Wong, The Future of Law and Order in Hong Kong: Reinventing the Hong Kong Police (New York: Wiley Press, 2001). 162  Yang Jun and Mei Jianming, “Market Economy and Policing in Mainland: Challenges and Changes,” in Wong, ed., The 3rd Annual Meeting of Asian Association of Police Studies. Asian Policing in the 21st Century: Proceeding Papers.

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Yang Jun and Mei Jianming’s paper “explores the challenges of policing in the context of the transition” and discovers that “the market economy is a decisive” factor in ushering in changes to policing in mainland China. In this regard, the authors observe that police reform in China is lagging behind market transformation. This is manifested in the failure of performance of the PSB in arresting the crime trend and regulating police abuses.163 Comparing the PSB and HKP police reform process we find that while both the PSB and HKP accept changes as inevitable and societal forces as instrumental in shaping police reform, only the PSB insisted that it is a political “instrumentality of the state” in the service of the ruling class. As such, PSB reform must follow the dominant political ideology of the day, i.e. “the absolute leadership of the CPC (“dang de juedui lingdao”), grassroots policing (Qunzhong Luxian), and totalitarian model of policing.”164 All PSB reform is political. In China the CPC defines the PSB’s roles and functions, with politics in control. In Hong Kong, the HKP defines its own vision and mission, as informed by professional “best practices.” The difference in approaches makes for an interesting comparison of “one country, two systems” of policing in action. It invites investigation into the relative role and impact of the political state vs. civil society in defining the roles and shaping the functions of the police. A host of issues present themselves: Is the police a political-oppressive institution or a social-service organization? Whether the police is a social or political agency? Is postmodern policing, in China or Hong Kong, shaped by political ideology or communal concerns? The Process of Police Reform: Community Policing in the Shadow of Colonial Policing What are the difficulties in introducing community policing to a colonialparamilitary force? Professor Lau, from the Open University of Hong Kong, has argued from the premise that colonial policing is incompatible with community policing, in structure, process, culture, ethos and mentality, that para-militarism continues to hamper enlightened police reform in the post-colonial era. Lau argues that in spite of the best intentions and with a tremendous amount of effort (e.g., the “living the value” campaign) “there are a number of limits to the realization of the community policing vision in Hong Kong.” Specifically: It is argued that the HKP’s paramilitary traditions have been institutionalized into premises (public order and law enforcement as the dual priority and seen as “real” policing), structures (e.g. the relative organizational decline of community relations positions as soon as the 1974 reform wave had cooled down), processes (e.g. recruit training and on-the-job “initiation” into the Force), practices (routine 163  Ibid., p. 15. 164  Ibid., p. 2.

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Lau observed that an apathetic public, not much interested in police–public partnership, and a political authority very concerned with security explains the failure of communalization and civilization of policing in Hong Kong. The public’s fear of the HKP in the past and apathy toward policing in the present preclude any successful cooptation of the public in its crime fighting and order maintenance effort. The political authority’s fear of riots and instability and public resentment of crime and disorder calls for the police to adopt a no-nonsense approach to fight crime and maintain order; often confused with professional policing in the image of perfectly executed military drills and maneuvers. Professor Lau’s postulated relationship between para-militarism and community policing is not wrong; only his analysis is not exhaustive. What is the postulated relationship, necessary or contingent, between para-militarism and community policing? What is the role of traditional Chinese culture toward government officials in explaining observed public fear of police and apathy toward public affairs? Are there other factors, such as the ethos of Hong Kong Chinese, contributing to public apathy toward public affairs? Could the HKP’s preoccupation with security and order be explained by non-colonial, non-paramilitary reasons? The Lessons of HKP Reform: Balancing Collective Interests and Individual Rights As part of Deng’s reform initiative, Chinese political leaderships have long sought modernization and globalization. The strategy is to “borrow” Western technology (引进科技), e.g., via joint venture,166 to achieve (re)integration with the world community (国际接轨), e.g., the WTO. Both of these missions and objectives require that the PSB adopt the world’s best practices. The HKP was selected as a premier learning site for its professionalism and innovation, with a world-class training program and facilities to match. As observed by Professor Lo on April 18, 2011:167 165  R.W.K. Lau, “Community Policing in Hong Kong: Limits to Realizing a Vision,” Asian Policing: Journal of Asian Association of Police Studies, 1(1) (January 2003): 91– 126, 92. 166  The author was the Chief Project Manager of a multi-million joint venture project in Shenzhen, China in 1983–84. 167  S.S.H. Lo, “The Influence of Hong Kong’s Policing on China Mechanisms of Knowledge Transfer,” Asian Survey, 51(4) (2011): 769–84. (“Police cooperation includes joint anti-crime campaigns, intelligence sharing, evidence collection, as well as mutual exchanges and training. Mainland police have been impressed by the Hong Kong police’s practices of operating in accordance with the Police Order, their use of handbooks, the

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Despite the different policing environment between Mainland China and the Hong Kong Special Administrative Region (HKSAR), the Mainland police have been learning from the Hong Kong experience in the area of operation. To enhance the manpower of Mainland police, private security companies have been legalized while residents’ anti-crime groups have been partially incorporated into the regular police force. The auxiliary police force has become an experiment in some Mainland cities, whereas the Hong Kong practice of police handbooks is viewed as a model for the Mainland. The Mainland police have been implementing various reform measures, such as the mass line concept, the visitation scheme, the heightened sensitivity toward “radical” individual and mass action in public places, the improved quality and quantity of police officers, and the recognition of the need to reform the recruitment, performance appraisal and training of the police force. If policy transfer refers to a process of learning through actors such as officials, groups and policy practitioners, it has taken place in Mainland China, which has been learning from the Hong Kong police. The policy ideas and practices of policing in Hong Kong have begun to shape the thinking of Mainland police officers, who have absorbed some Hong Kong experiences through their study visits, conferences and seminars that involve both Mainland and Hong Kong police.168

What can the PSB learn from the HKP? The PSB has looked to Hong Kong for technology and knowledge transfer in policing. The PSB is particularly interested in learning about how to manage police–society relations; in context, balancing collective interests (China reform agenda) and individual rights (Hong Kong reform agenda). In this regard, there are four important lessons China can learn from the HKP in public order events: First, law and order in Hong Kong, post-1997, as with reformed China since 1979, is fast deteriorating. Hardened criminals, desperate migrants and now unruly teenagers are increasingly tempted to test the limits of the law and challenge the authority of the police. This has resulted from increased public demand for personal rights and the community’s growing intolerance of police abuse of power, post1997. The 12/31 incident with the HKP is a good example. As evident from the TV footage, teenagers have no qualms in violating the law and defying the police. The front-line PTU officers at the 12/31 incident were unable, or perhaps unwilling,

rotation of officers, and the services of psychological counseling. Knowledge transfer in policing has taken place from Hong Kong to Mainland China” (Abstract).) The Hong Kong Police were to co-host the Police Association of China’s (PAC – 中國警察協會) 6th annual Symposium on Police Studies of the Straits, Hong Kong and Macao on October 19–21, 2011. 168  Prof. Lo Shiu Hing, “Policing and Policy Transfer: Is Mainland China Learning from Hong Kong?,” A Seminar sponsored by The Centre for Governance and Citizenship (CGC) of The Hong Kong Institute of Education, April 18, 2011.

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to deal with open challenges to police authority due to the lack of a clear public mandate and fear of citizens’ complaint. Second, in order to deal with disorderly crowds and defiant teenagers (this is especially important with the post-80s generation in China169 and post-90s generation in Hong Kong) the community must stand firmly together against anyone who violates the rule of law publicly and challenges the power of the police openly. In this regard, the public should give the police a clear and unambiguous mandate to maintain order and enforce the law, at all costs, including the use of all necessary and reasonable force. Moreover, those who disturb order, violate the law, and challenge the police should be told in no uncertain terms that the community supports their police to control disorder and put down violence. Specifically, they should be put on notice that the Hong Kong (China) community has “zero tolerance” for disrespectful conduct toward its police officers. Third, the HKP (and PSB) must adopt clear operational policies with simple and specific guidelines for the handling of disorderly crowds and disruptive youths in the future. Particularly, the HKP (and PSB) should empower front-line officers to respond in a speedy, resolute and, if need be, forceful manner to disorderly, rebellious, defiant and belligerent teenagers intent on causing trouble and inclined to challenge police authority. Front-line officers should not be asked to look the other way when gross disorder happens in front of them. They certainly should not be asked to tolerate disrespectful language and inflammatory conduct in order to pacify an unruly crowd or disruptive individuals. Lastly, front-line officers must never be asked to take personal responsibility for mass disturbance precipitated by rebellious youths; one that is not of their own making. Unless the HKP adopts clear policies and specific instructions in this area, front-line officers will not be able to feel secure enough to act decisively in dealing with such potentially explosive situations. Lastly, the HKP (and PSB) should take a firm and resolute stance in upholding law and order, realizing that this is what most people in Hong Kong want. Historically and worldwide the police is the first institution that the public look toward for law, order and security. Thus, the HKP or PSB should not appear to be weak and indecisive in the eyes of the public, particularly giving in to those who are bent on violating the law and challenging the police. Hong Kong thrived for years under the rule of law. It is one of Hong Kong’s most important assets. The people of Hong Kong are a law-abiding and orderloving bunch. They do not want to see illegal acts go unpunished, disorderly people go free, and challenges to law enforcers tolerated. However, the action taken by the police in the 12/31 incident, in the person of CSP Koo, shows that the police is neither able nor willing to take firm and resolute action to keep disorder under control. This allowed teenagers who assaulted police officers to go unpunished. 169  Katherine Danks, “China’s Second Generation of Spoilt Brats,” The Punch, March 4, 2010, .

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Instead, CSP Koo, in talking down the situation, well-intentioned though this was, made excuses for police inaction and rationalized the teenagers’ attacks. In so doing, CSP Koo sent the wrong signal to police officers, troublemakers and the public. As to the police, front-line officers are rightfully upset to have their authority challenged and their faces slapped when doing their job. This has a devastating effect on morale and further attenuates the increasingly strained relationship between senior officers and the rank and file. They also will not know what to do in the future when they are again challenged publicly and attacked personally. As to the troublemakers, especially impressionistic and rebellious teenagers, they are likely to be emboldened to test the limits of the law and challenge the authority of the police, for fun or for a thrill. Lastly, the public is the biggest loser. They are not likely to feel secure when they see that the police are unable and/or unwilling to take all necessary action to enforce the law and maintain order. They have certainly become frustrated, if not angry, to learn that the police they come to depend on and trust, prefer to lie in public in order to make peace with troublemakers. The 12/31 incident shows that the rule of law in Hong Kong is being assaulted by audacious teenagers and compromised by less than resolute police managers. The above remedial measures must be taken to reverse the deteriorating law and order situation in Hong Kong. Reflections We began this chapter by observing that there are a number of similarities to the PSB and HKP reforms. Both started around the 1970s, took shape in the 1980s, heated up in the 1990s and matured in the 2000s. Both reforms were driven by external events. The PSB reform was launched to facilitate the “Four Modernizations” amidst fast-moving economic, social and political changes. The HKP reform was launched to address decolonization and democratization needs, such as changes in organizational culture,170 improvements to service quality,171 170  The values to be inculcated are: integrity and honesty; respect for the rights of members of the public and of the force; fairness, impartiality and compassion in all dealings; acceptance of responsibility and accountability; professionalism (dedication to quality service and continuous improvement; responsiveness to change; effective communication both within and without the force). R.W.K. Lau, “History as Obstacle to Change: A Neo-Institutionalist Analysis of Police Reform in Hong Kong,” International Journal of the Sociology of Law, 32(1) (2004): 1–15. (Failure of HKP reform due to institutionalized paramilitary culture.) 171  Kenneth Davey, Assistant Commissioner of Police (Ag), Service Quality Wing, Hong Kong Police Force, “Why We Value Staff Opinion,” Conference on Serving the Community (October 1995), CP’s speech to Conference on Serving the Community. (On the occasion of the 150th anniversary of the HKP, the CP set forth one of the main goals of HKP reform, i.e., being “Asia Finest,” which forever requires constant evolutionary changes through QM. This has entailed: 1994—Creation of Police Staff Suggestion

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and the promotion of community relations.172 Both reforms required a radical change in the policing paradigm. The PSB shifted from ideological to secular policing.173 The HKP shifted from colonial to democratic policing.174 Both reforms sought reform through law, science and professionalism. The PSB sought rule by law. It built a legal system (“fazhi” 法制) to regularize, standardize, unify and integrate police services,175 nationwide.176 The HKP practiced rule of law (“fazhi” 法治). It used law to delimit, regulate and control police actions.177 The PSB collected intelligence through surveillance and with immersion.178 The HKP pursued evidence-based policing using scientific survey and statistical analysis.179 The PSB equated professionalism with the “Lei Feng” spirit.180 The HKP identified professionalism with competency, integrity and accountability.181 In terms of outcome, the HKP has been able to transform itself from a colonial para-military force to a community service corps. The PSB has been able to Scheme; 1996—Creation of Police Staff Motivation Scheme; 1997—Living the Values Programme; 1998—Internal Communications Consultancy; 1999—Survey Strategy; 1999—Station Improvement Programme; 1999—Service Improvement Training; 2001— Strategy on Internal Communications; 2002—Strategy on Quality of Service; 2003—Care of Vulnerable Groups; 2005—Caring Organization.) 172  C.W.-H. Lo and A.C.-Y. Cheuk, “Community Policing in Hong Kong: Development, Performance and Constraints,” Policing: An International Journal of Police Strategies and Management, 27(1) (2004): 97–127. 173 Wong, Police Reform in China. 174  Bernie Kam Tong, “The Hong Kong Police as a New Paradigm of Policing in a Post Colonial City: An Analysis of Reform Achievement,” Unpublished MPA (1999). See also Ian Scott, The Public Sector in Hong Kong (Hong Kong: Hong Kong University Press, 2010), “Responsiveness in the Police Force,” pp. 240–42. 175  Kam C. Wong, “Govern Police by Law (‘Yifa Zhijing’) in China,” Australian and New Zealand Journal of Criminology, 37 (Special) (2004): 90; “Quanmian tuijin yifa xingzheng shishi gangyao” (Outline for Promoting the Comprehensive Implementation of Administration in Accordance with the Law), adopted and effective March 22, 2004, . 176  Wong, Police Reform in China, Chapter 1. 177  “Police Pledge to Uphold and Maintain Laws of Hong Kong,” Police Report No. 13, Issued by PPRB, May 14, 2011. (“‘This is also required under the oath of office taken by Police Officers. In this oath, you have pledged to uphold and maintain the laws of Hong Kong, and that you will discharge your duties without fear or favour to any person. In other words, you have sworn to uphold the Rule of Law in Hong Kong and to protect the rights and liberties of the individuals,’ the Chief Justice said.”) 178  Zhen Yue-gang and Guan Shu-gan, Public Security Internal Administration Handbook (Gongan Neiqin Gongzuo Shouche) (Beijing: Jinguan jiaoyu chubanshe, 2001), “Chapter 1: Investigation and Research,” esp. pp. 5–11. 179  Davey, “Why We Value Staff Opinion,” p. 17. 180  Wong, Policing in China: History and Reform, p. 118. 181  Davey, “Why We Value Staff Opinion,” p. 13.

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change from being an instrument of class warfare into an agent of economic reform, with securing peace, maintaining order and providing services as its core missions. In both cases the observed direction, speed and degree of the changes have been variously challenged by internal (leaders, grassroots) as well as external stakeholders (public, world communities), but the conviction, effort and impact of the reforms are not in doubt. While not without their difficulties and setbacks, both the PSB and HKP reforms have been successful transformational projects. Between the two, the HKP has been more successful in terms of professionalization and democratization (citizens’ activism, politicization of the public), with PSB trailing far behind (abuse of powers, legitimacy crisis). However, factoring in reform obstacles and difficulties, the PSB has also made substantial and real progress, for example in terms of secularization and standardization. Final verdict: as urban police agencies,182 both the PSB and HKP have been successfully reinvented, along professional, bureaucratic and legal lines. The biggest challenge faced by the PSB and HKP reforms has been police accountability, more specifically, how to define the role and authority of police in a socialist vs. democratic society. The observation of this study is that the people in both societies are unhappy with their police, but for different reasons. In the case of the PSB, the concern is with egregious corruption and abuses, as a result of monopoly of powers. The PSB has too much formal and informal power, which is abused for personal gain. With the HKP it is how to rebalance police powers and individual rights in the face of a runaway citizens’ rights revolution. The HKP has many legal powers, but refuses to use them, even for the public good, e.g. enforcing law and maintaining order. Framing the issue of police accountability this way, I argue that the real issue is not police having too much (PSB) or too little power (Hong Kong), since (1) both the PSB (“instrument of the state”) and the HKP (colonial police) enjoy an abundance of powers, and (2) the measurement of police powers vs. citizens’ rights is always relative, never absolute, and subjective more than objective. For example, compared to Chinese people, Hong Kong people have many more rights; still they are unhappy with the HKP. The real issue with police accountability is not how much or little power the HKP or PSB enjoys, but how such police powers are used (or not) for or against public interests. Viewed in this light, it is as wrong for the PSB to misuse public powers for private gain as it is inappropriate for the HKP not to use public powers to maintain law and order. In both instances, there is a violation of public trust. In both instances there is a diminution of public confidence. In both instances the credibility and legitimacy of the police is being questioned.

182  This qualification is necessary because while the HKP is a city police agency, most of the PSB policing involves rural policing. The comparison in this section is with one of the two identities of the PSB, i.e., that of an urban and not rural police agency.

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Index

Abuse of powers 55 incidence and prevalence 80 pattern of abuse 79 Accountability, police 296 debate 51, 59 what extent 59 to whom 59 conduct 60 standard 60 Achievements (PRC Public Security reform) 284 consolidation of reform 285 evidence based policing 285 seasoned reformers 285 secular ideology 284 rule of law 285 Anti-foreignism xi, 4, 10 Assessment (HKP) 321 HKP officer reflection 325–32 public opinion survey 321 confidence 322 law and order 322 perception 322 performance 322–7 satisfaction compared: LegCo v. HKP v. PLA 328 Assessment (PRC – Public Security) 302 disgruntled workforce 309–11 praise 302 blogs 304 Western journalist 304 Assaults on police empirical research 144–7 one man vs. two man cars 146 Authoritarian rule xiii Bad apple theory xvii Beat patrol deployment 139

double beat (DB) 140 benefits of 156–69 problems with 154–6 literature 141–7 public policy debate 147–50 policy implications 149 safety vs. productivity 150 single beat (SB) 140 Bogue 6 British adventurists 15 colonialists 12 colonial practice 12 Crown Colony 10 empire 23 government 12 governance 12 House of Common 22 interests 12 landing (in Hong Kong) 2 law 11 London Metropolitan Police 36 Navy 7, 28 Marines xii, 2 Maritime Office 31 Prime Minister 23 Queen Victoria 10, 35 rule 11, 20, 25 settlement 9 subjects 11 territories 12 Whig Government 10 Whitehall 28 Cain, William 5, 39, 41 Chief Magistrate 25 law and order duties 40 penal authority 26, 27 Canton 5 Canton Trade System 5

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Chinese Admiral Kwan 7 Commissioner Qishan 7, 10 culture 43 dominion 11 emperor, Daoguang 9 empire xii fugitives 18 government 18 Han dynasty 13 Ming dynasty 13 Qing dynasty 13, 30 jurisprudential thoughts 255–67 migrants 18 nationals 11, 26 nationality 11, 26 opportunists 15 population 15 sovereignty 11 Citizens’ complaints 81 nature of 81 origin of 82 informal resolution 84 Colonial rule 23 legitimacy 41 morality 41 self-determination 41 Colony British colony 11, 24 governance 11 Colonial government xi Colonial instruction 23 colonial objectives 2 Colonial Office 23 colonial police xii, xvi colonial policing xi, 34 colonial policy 225 colonial rule 23 legitimacy 41 morality 41 self-determination 41 Colonial Secretary 23, 24 Lord Stanley 24 Colonial Treasury (Hong Kong) 35 Commissioner Qishan 7, 10 Commodore Sir, J.G. Bremer 1 Community policing 294–96 ACP Cheuk 295

Community Relations Officer 296 District Fight Crime Committee 295 Fight Violent Crime Campaign 296 Junior Police Call 296 Neighborhood Watch Scheme 296 Neighborhood Police Coordinator 296 Police Public Information Bureau 295 Police School Liaison 296 six stages of reaching out 295–6 Complaint Against Police Office (CAPO) 55, 61, 67–78 allegations of crime 74 assessment of CAPO 75–78 CAPO process 72 Internal Investigation Branch 71 informal resolution 73–74 investigating minor complaints 73 organization 71 Complaint against the police systems 67–84 Complaint Against Police Office (CAPO) 55, 61, 67–78 Independent Police Complaint Council (IPCC) 78–84 Police Complaint Council (PCC) 68 Unofficial Members of the Executive and Legislative Councils (UMELCO) Group 68 Computer crime policing 165–217 Computer mediated communication (CMC) 165, 166 Computer Security Studies HKMA, “Security of Banking Transactions Over the Internet” (1997) 1997 HKSFC, “Report of Hong Kong Securities and Future Commission Working Group on Automated Trading System – Public Consultation” (1997) 191–2 Confucian xi, 56 Control of police misconduct 67 difficulties, policing HKP 86–7 Controlling police use of force 89–98 administrative supervision 91 investigation 94

Index legal control 97 criminal law 97 domestic law 97 international law (ICCPR) 97 literature 89 media exposure 96 Police General Order 97–110 use of firearms 90 use of force continuum 92 Crime counterfeit products 179 computer crime 168, 171 cases prosecuted 209–11 creation 168 criminality 171 discovery 186–8 distribution 172 emergence 171, financial losses 174 hacking reported 173 IP rights infringement 180 “moral panic” (Cohen) 214 PC affected 175 pornographic materials, public complaints 173 problem for HKSAR 175–86 public concern – privacy 176–7 public awareness 205 reported 171, 172 trend 171 Y2K “Millennium Bug” 215 Crime control 32 framework of control 37–8 in Hong Kong (1841) 29–39 on land 29 privacy 30–31 Defensive use of force (1963–68) (HKP) 111–38 Democratic policing xiii East India Company 5, 6 Eight Regulations 6 Elliot, Charles, Captain 2, 7, 8,10, 24, 37 Plenipotentiary 25 Chief Secretary of Trade 25 Extra-territoriality 11 European xii

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European lifestyle 17 Foreign foreigners 6 community 9, 18 devils 6, 8, 18 Foreign Office 31 Foreign Secretary Lord Aberdeen 10, 35 Foreign Secretary Lord Palmerston 1, 7, 9, 10, 35 nationals 11 traders 6 Gambling 200–205 Betting Tax (Amended) Ordinance 204 Gambling (Amendment) Ordinance 204 Horse racing duties 202 Internet gambling 200 moral outrage 201 Offshore gambling 202 youth problems 203 Gendarmerie xii, xiii Hong Kong Aberdeen 2, 13 Charter of Governance 23 “barren rock” 1 boat people 16 British landing 2 Chief Superintendent of Trade 23 Hong Kong with Chinese characteristics 250–52 Chik Chu 14 Chung Wan 14 colonial officers 17 crime and disorder 14, 17 Hong Kong development 15 Executive Council 23 Fragrant Harbor 13 Heung Kong Tsai 13 Hong Kong governor 10 Admiral Pottinger, first governor 28 Patten, Chris, last governor 228 Hong Kong governance 11 Hong Kong inhabitants 24–5, 27 Little Hong Kong 2

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Legislative Council 23, 199, 203, 219 “dual track” legal system 43 indirect rule 27 Hong Kong justice administration 12 Hong Kong Monetary Authority (HKMA) 166, 191 noteworthy events (1841–1997) 49–50 Hong Kong Ordinance No. 9 of 1866 31 Hong Kong people (before British) 15–21 Hong Kong philosophy of governance 22 Hong Kong population 17 Hong Kong proclamation of rule 24, 25, 37 Hong Kong resident 11, 20 Hong Kong Securities and Future Commission 166, 191 HKSAR Secretary for Information Technology and Broadcasting (ITB) 214 Secretary for Security 220 Shek Pai Wan 13 Sheung Wan 14 social control 14 Tai Long Wan 13 Wong Chuj Hang 13 Wongnaichung 2 Hong Kong Police (HKP) police accountability xvii police beat deployment xvii computer crime xvii Commercial Crime Bureau (CCB) 208 Computer Crime Section 208 crime control xvii origin 39–40 police history xvii investigative powers xvii HKP powers xviii Police Tactical Unit (PTU) xv surveillance xvii use of force xvii HKP Reform accountability 296 IPCC 296 “surprise observations” 297

assessment 321 HKP officer reflection 325–32 public opinion survey 321 confidence 322 law and order 322 perception 322 performance 322–7 satisfaction compared: LegCo v. HKP v. PLA 328 authoritarian image 299 training 299 behavioral scientist 301 socialized 299 humanized 299 community relations 294, 296 ACP Cheuk 295 six stages of reaching out 295–6 computerization 301 education 299 equal opportunity 300 female officers 300 Force Committee on Integrity Management 291 Living the Values eight values 290 wave III workshop schedule 291 workshops 290–91 organization culture 289 problem oriented policing 301 productivity 301 problems with reform 333 rights explosion 333 challenge authority 335 politicization 337 technology 298 CAFIS 298 detention cells intercom 298 GIS 298 Group Support System (GSS) 298 TETRA 298 transparency 297 video interview 297 vision 289 293 HKP powers 233–235 administrative law powers 54 criminal law powers 54 discharge duties 63

Index ID check (PTU) 66 Independent Police Complaints Council 55 Imperialism imperialistic xi Independent Police Complaint Council (IPCC) 78–84, 296 CAPO to IPCC 78 IPCC Annual Reports 81. 82, 83, 84 PCC to IPCC 69 “surprise observations” 297 Interception of Communications Surveillance Ordinance 219–76 controversial law 239 historical context 225–8 Legislative Council debate 220–21 legislative process 241 Law Enforcement (Covert Surveillance Procedures) Order (2005) 236 privacy concern 239 Intellectual Property (IP rights) 180 critical security issues 183–4 infringement 180 opinion survey 181 knowledge of IP rights 181 moral judgment 181 reasons for infringement 180 Indigenous Indigenous culture xi, xii indigenous perspective xi Intellectual provincialism 248–50 Jurisdiction 12 Legal control of HKP 97 international law (ICCPR) 97 domestic law 97 criminal law 97 Living the Values eight values 290 workshops 290–91 wave III workshop schedule 291 Macao 6 Nationalism 10 nationalistic xi, 4

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Newspaper Canton Free Press 9 Friend of China 9, 15, 17, 18 Friend of Hong Kong 9 Hong Kong Daily Press 1 Officer (HKP) reflection 325–32 One Country, Two Systems xx, 281 Opium first opium war xii, 6 opium trade 3, 18, 31 opium war xii, 6, 31 Ordinances (Hong Kong) Bill of Rights Ordinance 69 Crimes (Torture) Ordinance (Cap. 127) 92 Police Force Ordinance (Cap. 232) 64 Public Order Ordinance (Cap. 345) 65 People’s Republic of China (PRC) PRC gongan xx PRC government xii PRC Ministry of Public Security 208 PRC Public Security Bureau 208 Plenipotentiary of Trade 7 Political institution xv Policing colonial policing xi democratic policing xvi Hong Kong policing xi non-democratic policing xiv proactive policing xv quasi-democratic policing xiv reactive poling xv religious – based policing xiv system of policing xiii Policing Hong Kong Police 51–87 abuse of powers 55 incidence and prevalence 80 patterns of abuse 79 accountability 51, 59 extent 59 to whom 59 conduct 60 standard 60 action against officers 62 allegations 56 endorsed by IPCC 57

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substantiation rate 56, 57, 83 Citizens’ complaints 81 nature of 81 origin of 82 informal resolution 84 Complaint against the police systems 67–84 Complaint Against Police Office (CAPO) 55, 61, 67–78 Independent Police Complaint Council (IPCC) 78–84 Police Complaint Council (PCC) 68 Unofficial Members of the Executive and Legislative Councils (UMELCO) Group 68 control of police misconduct 67 difficulties, policing HKP 86–87 controlling police use of force 89–98 administrative supervision 91 investigation 94 legal control 97 international law (ICCPR) 97 domestic law 97 criminal law 97 literature 89 media exposure 96 Police General Order 97–110 use of firearms 90 use of force continuum 92 Police technology 298 CAFIS 298 detention cells intercom 298 GIS 298 Group Support System (GSS) 298 TETRA 298 PRC Public Security Bureau (PSB) vs. HKP 281–350 PSB reform 281–7 achievements 284 consolidation of reform 285 evidence based policing 285 seasoned reformers 285 secular ideology 284 rule of law 285 assessment 302 disgruntled workforce 309

praise 302 blogs 304 Western journalist 304 Police-Public Relations Survey 306–309 problems with reform 313 abuse of power 313 extended detention 314 legitimacy crisis 317–22 issues 285 clarifying “policing with Chinese characteristics” 286 “feeling” and “thinking” about police 286 revolutionary police vs. professional police 286 Privacy 13 Anti-privacy campaign, foreign Hong Kong Basic Law 188 Article 3 188 Article 30 189 Hong Kong Law Reform Commission 189 “Reform of the Law Relating to the Protection of Personal Data” (1994) 189 “Report on Privacy: Regulating the Interception of Communications” (1996) 190 Hong Kong Ordinance No. 9 of 1866 31 a privacy concerns, post-1997 188–91 trade loss 197 Qing-Li-Fa (QLF) xix, 255 adjudication standard 256, 259 code of conduct 255 comparison 267–70 with Chancellor court 268 with common law 268 with due process 269 with jury system 268 cultural practice 256 demonstrative cases 266 ethical principles 255 legislative goal 258 what is fa? 264 what is li? 263

Index what is qing? 262 Reform problems rights explosion 333 challenge authority 335 politicization 337 Sir Gordon Bremer 7

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Treaty Treaty of Chuenpi 7 Treaty of Nanjing xii, xvii, 2, 10, 11 Text (Chinese and English) 44–48 unequal treaty 10 Western vs. Asian values debate 241–48 Whampoa 6, 8