POLS 7040

Law & Public Affairs

Topic 7
Criminal Justice System I –
(Law Enforcement; Prosecution and Public Policies)

Jason Law
 Content
• Crime Prevention and Investigation
• Policing in HK

• Prosecution
• Prosecution policies

• Criminal Justice and Public Policies

• Chit-chat Good Law v Bad Law (Hart-Fuller debate!)

• Group Presentation
 Law Enforcement in HK
• DOES NOT MEAN Police alone!

• Major Law Enforcement Agencies

• HK Police Force (香港警務處)

• Independent Commission Against Corruption (ICAC) (廉政公署)

• Custom & Excise Department (海關)

• Immigration Department (入境處)

• Food & Environmental Hygiene Department (食物環境衛生署)

 Hong Kong Police – Brief History
• Established in 1844 à Asian 1st modernized policing agency (UK
Metropolitan Police Service was established in 1829)

• First police station: “Tai kwun” (大館)

• British, Indian, Chinese

 Sir Robert Peel’s 9 principles of policing
• UK former Home Secretary (1822-1833) and Prime Minister (1834-35, 41-
46) à established Metropolitan Police in 1829

• 1st modernized police force in the world

• Before: policing was carried our by local

Watchmen and justice of the peace

• Disorganised and inefficient

• “Peelian principles”
 Sir Robert Peel’s 9 principles of policing
• Prevent crime and disorder
• Powers are dependent upon public approval of police actions
• Must secure the willing co-operation of the public
• Co-operation of public diminishes proportionately to the use of physical force
• Demonstrate absolute impartial service to the law
• Use of force only when persuasion, advice and warning insufficient
• Maintain a relationship with the public à police are the public and public are the
police
• Direct their action strictly towards their functions à X judiciary
• Test of police efficiency is the absence of crime and disorder, not visible police
actions
 Police’s Authority in HK
• Police Force Ordinance, Cap. 232
• https://www.elegislation.gov.hk/hk/cap232!en-zh-Hant-HK

• Police General Order

• https://www.police.gov.hk/ppp_en/11_useful_info/pgo.html

• Force Procedure Manual

 Police Powers
• Rule of Law
• Equality before the law

• Can be prosecuted for unlawful acts done during the course of duty
• E.g. HKSAR v Chui Yun Woo HCMA 1144/2006 – fabricating witness statements in a
traffic accidents à using false instrument

• HKSAR v Sin Kam Wah [2005] 2 HKLRD 375 – received prostitution services for
tipping off à misconduct in pubic office

• Police must constantly demonstrate absolute impartial service to the law

• Police State?
 Police Powers
• Power to stop and detain
• No one shall be detained arbitrarily (Common law; Art. 5, BORO; Art. 28, Basic
Law)

• Legal authority to stop and detain a person (s. 54, PFO)

• A person acting in a suspicious manner in a public place
• Officer reasonably suspects a person has committed or intended to commit or is about
to commit an offence
• Stop for proof of identity and enquiry
 Police Powers
• Power to search and seize
• Search the person
• S. 54(1), PFO: search for anything that may prove a danger to the officer
• S. 54(2), PFO: search for anything of value to the investigation of any offence
• S. 50(6), PFO: reasonably suspects those items to be of value to investigation
• Search premises
• With warrant (搜查令)
• S. 50(7), PFO: Search for and seize things of value to the investigation
• S. 103, Criminal Procedure Ord.: Order by Mag for seizure
• S. 28(1), Theft Ord: Search for and seize stolen goods
• Without warrant
• S. 50(3)-(6) PFO
 Police Powers
• Power of Arrest
• Without warrant (拘捕令)
• S. 50(1), (1A), (1B) PFO: reasonable belief that the person will be charged or if he has a
reasonable suspicion of a person’s guilt of any offence

• With warrant
• Mag to issue a warrant for arrest

• The arrestee shall be informed of the reasons for arrest and the rights he/she
enjoys! (Pol. 153)

• Citizen’s arrest
• S. 101 and 101A, Criminal Procedure Ord.
 Police Powers (Arrest)
• S. 51, PFO: as soon as a person has been arrested, he should be
delivered forthwith to the police officer in charge of the police station
(Duty Officer (值日官) – Station sergeant(警署警長) to which he has
been taken
 Police Powers
• Questioning of a Suspect
• Not obliged to answer any questions unless statutes required e.g. proof of
identity; giving driver’s identity; NSL

• “The Judge’s Rules”

(Rules and Directions for questioning of suspects
and taking of statements)
 Police Powers (Questioning)
• Rule 1: police can question any person
• Rules 2, 3: cautioning of person
• Rules 4, 5: methods of statement taking
• Rule 6: use of statements by co-accused when interviewing
• Directions 1 -8: treatment of suspects when being interviewed
 Police Powers
• Detention after Arrest
• S. 52, PFO: should be released on police bail after enquiries unless the offence
is serious or it is reasonably believed to be necessary to detain the person. If
bail is not granted by the police, the arrested person should be brought
before a Mag “as soon as practicable”

• 48 hours?
 Police Powers
• Identification parades
• No statutes in HK (voluntary participation)

• ID parade book

• Rights of the suspect?

 Police Powers
• Collection of Fingerprints
• S. 59(1), PFO: where a person has been arrested or convicted à power to
take photos, fingerprints, palm prints, toe prints and to record his weight and
height
 Police Powers
• Intimate body samples (體內樣本)
• S. 59A and 59B, PFO authorize the taking of intimate sample e.g. blood,
semen or any tissue fluid, urine, dental impression etc.
• BUT: only for forensic analysis + authorisation of a superintendent of police or
higher ranking officer + consent + Mag’s approval!
• BUT BUT: drinking driving à failing to give blood sample à offence
 Police Powers
• Non-intimate sample (非體內)
• S. 59C, PFO
• E.g. hair, nail, saliva etc
• BUT only for forensic analysis + authorisation by superintendent of police or
higher ranking
• X consent + reasonable force may be used to collect sample
 Abuse of Police Powers
• May result in disciplinary actions, criminal or civil proceedings

• Complaints Against Police Officers + Independent Police Complaints

Council
 Prosecutions (檢控)
• Who can bring a prosecution?
• Law enforcement agencies e.g. police, ICAC, C & E, Immigration à discretion

• Government Departments e.g. Labour Department à departmental

summonses

• Individuals (private prosecution):

• s. 14(1), Magistrates’ Ord à DoJ can take over and stop

• DoJ (main focus!)

 Prosecution
• Most prosecutions are brought by police à DoJ commencing
proceedings

• Not bound to prosecute!

• Court cannot dictate on prosecution whether or not to prosecute

• SJ v Tse Sheung Kai à pressed for bind-over, refused à absolute discharge à
wrong!
 Prosecution
• Mag:
• Court prosecutors / lay prosecutors (法庭檢控主任)

• All Courts:
• Government counsel / Public Prosecutors (檢控官)
• Solicitors and barristers in private practice à counsel-on-fiat (控方外聘檢控官)
 Ethical Role of Prosecutor
• Officers of the Court à duty to the court, must not mislead
• Achieve Justice, not guilty

• Required to disclose all materials (used and unused) to the defence

before trial

• Must not contact prosecution witnesses (statements taken by officers)

 Decision to Prosecute
• Enough evidence to prove all elements of an offence?

• Reasonable prospect of conviction?

• Public interest:
• Surrounding circumstances?
• How serious was it?
• Practical effects?
• Attitude of the victim?
• Others being affected?
• Would consequences (penalty) of prosecution be disproportionate to seriousness of the
offence?
• Bind-over
• Plea bargain
 Decision to Prosecute
• Assessing Strength of Prosecution Evidence
• P should evaluate:
• Confession (招認)?
• Witnesses telling lies or exaggerating?
• Is memory being faulty?
• Hostile or friendly to D?
• Motive for telling more or less than the whole truth? E.g. monetary disputes, maid in HK
• Availability to give evidence?
• Reliability of witnesses? E.g. gangsters
• Substantial matters for D to attack credibility of PW?
• Multiple Ds à evidence against each?
 Decision to Prosecute
• Public Interest Criteria
• Evidence sufficient à does public interest require a prosecution?

• Are there alternatives to prosecution? E.g. caution, warning, bind-over?

 Decision to Prosecute – Public Interest
• Matters for consideration:-
• Interest of the victim?
• Likely penalty?
• How long has the offence be committed?
• Youth
• Old age and infirmity
• Mental illness
• Sexual offences
• Heart of the issue or “foot soldiers”?
• Remorse
• Delay
• Availability of civil remedy
• Assistance to the authority
• Technicality
 Decision to Prosecute
• Factors increasing likelihood of prosecution
• Serious offence, significant penalty
• Abuse of trust
• Premeditated
• Weapon was used?
• Organizer?
• Victim is vulnerable
• Metal illness on victim
• Committed while on bail, probation, suspended sentence or bind-over
• Corruption
• Previous conviction
• Public interest: widespread around the area? Public views
 The Statement of Prosecution
Policy and Practice
• The primary consideration is public interest

• “It is for the secretary for justice alone to decide whether or not
prosecutions shall be instituted in any particular case or class of case,
and his responsibility to control and conduct them”

• Director of Public Prosecutions or SJ (political appointment)??

 Conclusion on Criminal Justice System:
Crime and Public Policy
• Crime is about public policy

• Changing everyday to accommodate public views

• Criminalization and decriminalization

• E.g. prostitution and drug use in Europe; possession of guns

 Crime and Public Policy
• 6 main public policies approaches are available for dealing with
criminal law. Not contradicting, sometimes alternatives or
complements
• Criminal Law Enforcement
• Prevention
• Harm Reduction
• Regulation
• Criminalization and Decriminalization
• Nonintervention
 Criminal Law Enforcement
• Investigation, arrest, prosecution, verdict, sentence, correctional
services

• Enact and Revise Laws defining crimes and penalties

• Highly discretionary!

• Message to citizens: what should not be done and what will happen
(deterrence)
 Criminal Law Enforcement
• Punishment + Rehabilitation

• Moral education
 Prevention
• Situational prevention
• E.g. CCTV, improved lighting à make crimes harder to commit

• Developmental prevention
• Young persons’ education à reduce risk

• Community prevention
• Creation of community self-help crime prevention organisations
• Situational prevention in community
 Harm Reduction
• Utilitarianism (功利主義)
• Jeremy Bentham
• No suffering should be imposed in the name of crime
Prevention
• Only when suffering of offenders < happiness of others

• Minimize costs
• E.g. allow drugs, prostitution and guns but require e.g. registration
And regular checks à reduce harms associated
• Minimization, not elimination!
 Regulation
• Mostly in business and traffic offences

• Also in prostitution, drugs and guns

• Who can do certain acts and what procedures he or she has to follow
 Criminalization
• Making a certain act a criminal offence in reply to public’s expectation
or social changes e.g. improvement in technology

• Cyber-crime, deepfakes
• https://www.info.gov.hk/gia/general/202110/08/P2021100700545.htm?fontS
ize=1
 Decriminalization
• Eliminating crime by definition à acts no longer a crime

• HK in the future?
• E.g. Euthanasia (安樂死)
• https://www.info.gov.hk/gia/general/201612/14/P2016121400657.htm?fontSize=1

• Uber
 Non-intervention
• To do nothing

• Edwin Schur (1973) : the best response to juvenile delinquency is to

do nothing at all
• Studies show that most youngsters will soon desist from criminality
• Labeling theory: being deprived of chances + put into contact with
More deviant peers

• When decriminalization is not feasible

 Good Law v Bad Law
Hart-fuller debate
• Lon Fuller (Natural Law 自然法學)
• Morality is the source of law’s binding power

• HLA Hart (Legal Positivism 法律實證主意)

• Laws are regulation set by human beings
• No direct link between law and morality
 Good Law v Bad Law
Hart-fuller debate
• Post-war West German Court’s decision

• 1944, a wife wanted to get rid of her husband à reported her

husband to the authorities for making remarks about Hitler (which he
did) à wife testified against husband à husband sentenced to death

• Before death penalty, husband sent to the front à Nazi Germany

defeated à wife + judge being charged with unlawful deprivation of
another’s liberty
 Good Law v Bad Law
Hart-fuller debate
• Germany Court of last resort in criminal cases acquitted the
sentencing judge but wife is guilty

• She chose and utilized Nazi law instead of a sense of justice to bring
death or imprisonment of her husband
 Good Law v Bad Law
Hart-fuller debate
• Issue: whether wife should be punished??

• For (Natural Law – Fuller): wife should be punished

• Even if that was the law, but the law was just (bad law), losing its status as a “law” à
only good law is called law
• Law is not only about legislature, it has to be just and fair
• Hitler acted “legitimately” against the Jews
• **Justice**

• Against (Legal Positivism - Hart): wife should not be punished

• It was the law, even a bad law, still binding
• Wife did not commit crime at that time under Nazi Law
• **Legal certainty and stability**
 Good Law v Bad Law
Hart-fuller debate

Legal Positivism (Hart) Natural Law (Fuller)

-bad law is still law, we have to obey -Not a “legal way”
-to do justice i.e. to punish the wife, the only way is to -a symbol of separation with the past
Implement retrospective law, i.e. to do justice by creating -Rejecting bad law means a return to justice and morality
evil