HICC 241/3
RECEIVED IN S
13 MAY 1992
FROM:
Miss S Brooks
DEŠK OFFICER
TRY
Legal Counsellor
INDEX
A
DATE:
12 May 1992
CM
Mr Harkin
HKD
HONG KONG BILL OF RIGHTS: POLICE FORCE (AMENDMENT) BILL
1.
It seems clear that Hong Kong Government Legal Advisers may have in mind Article 9 of the International Government on Civil and Political Rights (photocopy attached). Any potential problems would appear to concern not the right to search, but the power to arrest or detain. In looking into this matter, I have been guided by the jurisprudence of the European Covention on Human Rights which has in its Article 5, a provision similar to Article 9 of the Covenant.
2. None of the provisions appear to give rise to arbitary arrest or detention since arrest for detention would be on the grounds, and in accordance with the procedure, established by the Bill, once it becomes an Ordinance.
The new Section 54(i) and (ii) should not give rise to problems. However, much depends on whether the period of detention is indeed reasonable. I assume the suspect would
3.
be brought before a court if he is charged. Section 54(i) would be less open to challenge if the provision were framed so that a police officer could only detain a person for a reasonable period during his enquiry in the case that the police officer has reasonable grounds for considering that that person is acting suspiciously.
4. I am more concerned about the proposed Section 50 (7) under which a person may be temporarily detained for the duration of a search for items which may be of value in the investigation of an offence which has been or is about to be committed. As I read paragraph 4 of Hong Kong telegram 1242 of 7 May, it is not a condition that there should be reasonable grounds for thinking that that person is likely to hinder the search, and indeed he may be quite unconnected with the offence. For example, person A, a friend or a relative of person B, could be detained during a search for items connected with an offence which person B is about to commit even though person A has no idea that an offence is about to be committed and indeed would not hinder any such search, and there is no reasonable ground for thinking that he would so hinder it. In other words, my objection to this
AE1AOJ
HS 13/