Periodic Report 30 November 2019

Important note

This document has been prepared by members of the Hong Kong Neutral Legal Observers Group (“HKNLOG”). It covers matters that we have observed, directly and indirectly, with accompanying legal commentary and analysis of the matters of public interest they raise. It focuses on events from 17 August 2019 to 1 October 2019 (“Report Period”). However, it is not an exhaustive nor complete summary or analysis of the events during this period, and while it discusses legal issues, it is not intended to be legal advice. Therefore, it must not be relied upon as legal or other advice of any kind.

All references to “Hong Kong” in this document are to the Hong Kong Special Administrative Region of the People’s Republic of China.

Any inquiries should be directed to [email protected] or via our website www.legalobservers.org.hk.

Contents

Glossary ...... 4 Part I – Executive summary ...... 7 1 Background ...... 7 2 Our observations ...... 7 3 Case law ...... 8 4 Our recommendations ...... 8 Part II – Introduction ...... 15 5 About HKNLOG ...... 15 5.1 Overview ...... 15 6 Our activities during the Report Period ...... 16 6.1 Key activities ...... 16 6.2 Public gatherings attended ...... 17 7 About this report ...... 18 7.1 Purpose, scope and limitations ...... 18 7.2 All rights reserved ...... 18 Part III – Our observations ...... 19 8 In-person observations by HKNLOG Observers ...... 19 A Participants of public gatherings ...... 19 8.1 General observations of Participants ...... 19 8.2 “Unauthorised” public gatherings and routes ...... 19 8.3 Shielding identity / masking ...... 22 8.4 Antagonistic behaviour ...... 24 8.5 Property damage / vandalism ...... 27 8.6 Road blocks and other barriers ...... 28 8.7 Setting fires ...... 30 8.8 Dangerous articles ...... 30 8.9 Mistreatment of National Flag ...... 32 8.10 Waste generally ...... 33 B Police ...... 34 8.11 General observations of Police ...... 34 8.12 Lack of presence in certain cases ...... 35 8.13 Non-identification / masking by Police ...... 35 8.14 Engagement with Participants and HKNLOG Observers generally...... 36 8.15 Stop and search ...... 38 8.16 Arrest ...... 40 8.17 Use of force and dispersal tactics generally ...... 42 8.18 Use of tear gas and other chemical irritants ...... 47 8.19 Deployment of water cannons...... 50 C Journalists ...... 51 8.20 Press freedom and identification ...... 51 8.21 Balanced and accurate reporting ...... 52 D Frontline volunteers ...... 53 9 Other observations (digital sources) ...... 54 9.1 "Doxxing" / privacy breaches ...... 54 Part IV – Other reported matters ...... 60 10 Police-related matters ...... 60 10.1 Fake Police ...... 60 10.2 Use of undercover Police officers ...... 61 10.3 Use of kinetic impact projectiles ...... 62 10.4 Treatment in custody ...... 63 11 Suspected triad involvement and other unlawful acts ...... 66 12 Hospitals and medical records ...... 68 13 Employees and the workplace ...... 69 13.1 Strikes, gatherings, health and safety ...... 69 13.2 Social media use by employees...... 73 Part V – Case update ...... 76 14 Arrest of minors ...... 76 15 Establishment of a commission of Inquiry ...... 77 16 Stopping the MTR service ...... 78 17 Obstructing the MTR ...... 79 18 Obstructing the Airport ...... 80

Glossary

Capitalised terms used in this Report have the following meanings, unless the context requires otherwise.

Airport or HKIA Hong Kong International Airport, Chek Lap Kok

Anti-Mask Regulation Prohibition on Face Covering Regulation, issued pursuant to the Emergency Regulations Ordinance on 4 October 2019

Associate Member An HKNLOG Member who is not a fully qualified Hong Kong lawyer. Associate Members may include, for example, trainee solicitors and Registered Foreign Lawyers

Basic Law The Basic Law of the Hong Kong Special Administration of the People’s Republic of China

Bill of Rights Ordinance Hong Kong Bill of Rights Ordinance (Cap. 383 of the Laws of Hong Kong)

Chief Executive Chief Executive of Hong Kong (Ms Carrie Lam Cheng Yuet-ngor during the Report Period)

CHRF Civil Human Rights Front

Convention Against Convention against Torture and Other Cruel, Inhuman or Degrading Treatment Torture or Punishment entering into force on 26 June 1987

Crimes Ordinance Crimes Ordinance (Cap. 200 of the Laws of Hong Kong)

Court A court of Hong Kong having judicial authority

Court of Final Appeal or Hong Kong Court of Final Appeal, established under the Hong Kong Court of CFA Final Appeal Ordinance (Cap. 484 of the Laws of Hong Kong)

Dangerous Goods Dangerous Goods Ordinance (Cap. 295 of the Laws of Hong Kong) Ordinance

Defamation Ordinance Defamation Ordinance (Cap. 21 of the Laws of Hong Kong)

Emergency Regulations Emergency Regulations Ordinance (Cap. 241 of the Laws of Hong Kong) Ordinance

Employment Ordinance Employment Ordinance (Cap. 57 of the Laws of Hong Kong)

Extradition Bill Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019 issued on 29 March 2019 and withdrawn on 23 October 2019

Government The Government of the Hong Kong Special Administrative Region of the People's Republic of China

HKID card Hong Kong Identity Card issued by the Immigration Department of Hong Kong

HKNLOG Hong Kong Neutral Legal Observers Group

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HKNLOG Member A member of HKNLOG, who is an Ordinary Member or an Associate Member

HKNLOG Observer or A Full Member of HKNLOG attending a public gathering as a neutral observer, Observer not as a participant. This role is reserved to Ordinary Members. Associate Members do not act as Observers

Hong Kong Hong Kong Special Administrative Region of the People’s Republic of China

ICCPR International Covenant on Civil and Political Rights, entering into force 23 March 1976

Immigration Ordinance Immigration Ordinance (Cap. 115 of the Laws of Hong Kong)

Juvenile Offenders Juvenile Offenders Ordinance (Cap. 226 of the Laws of Hong Kong) Ordinance

Legislative Council Legislative Council of Hong Kong

MTR MTR Corporation Limited and/or as context requires, the Mass Transit Railway system it operates

MTR By-Laws Mass Transit Railway By-laws (Cap. 556B of the Laws of Hong Kong)

National Emblem The National Emblem of the People's Republic of China, as defined in the National Flag Ordinance, featuring "Tiananmen Gate beneath the five shining stars, encircled by ears of grain and with a cogwheel at the bottom"1

National Flag The National Flag of the People’s Republic of China, as defined in the National Flag Ordinance, being a red flag with five stars (one large yellow star with a semi- circle of four smaller yellow stars)

National Flag Ordinance National Flag and National Emblem Ordinance, Instrument A401 of the Laws of Hong Kong2

No Objection Letter A letter of no objection issued by the Police in relation to a public gathering under the Public Order Ordinance

Observation A public gathering at which HKNLOG Observer attended in that capacity, as described in paragraph 6.2

Offences Against the Offences Against the Person Ordinance (Cap. 212 of the Laws of Hong Kong) Person Ordinance

Ordinary Member An HKNLOG Member who is resident in Hong Kong and eligible to practice Hong Kong law, being a Hong Kong Solicitor or a Barrister called to the Hong Kong Bar

Participant A person we believe to have been a participant of a public gathering. Not all Participants we observed were of the same political / philosophical orientation

PDPO Personal Data Privacy Ordinance (Cap. 486 of the Laws of Hong Kong)

1 See: english.www.gov.cn/archive/china_abc/2014/08/27/content_281474983873533.htm. 2 This instrument was not given a chapter number under the Legislation Publication Ordinance (Cap. 614 of the Laws of Hong Kong). An unofficial reference number, however, is assigned to this instrument in the Hong Kong e-Legislation database (http://www.elegislation.gov.hk) for identification purpose – Cap A401.

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PFO Police Force Ordinance (Cap. 232 of the Laws of Hong Kong)

PGO Police General Orders, made by the Commission of Police under section 46 of the PFO

Police Hong Kong Police Force or a member of the Hong Kong Police Force, as the context requires

Privacy Commissioner Hong Kong Privacy Commissioner for Personal Data

Public Cleanliness Public Cleansing and Prevention of Nuisances Regulation (Cap. 132BK of the Regulation Laws of Hong Kong)

Public Health Ordinance Public Health and Municipal Services Ordinance (Cap. 132 of the Laws of Hong Kong)

Public Order Ordinance Public Order Ordinance (Cap. 245 of the Laws of Hong Kong)

Regional Emblem The Regional Emblem of Hong Kong, as defined in the Regional Flag Ordinance, being a bauhinia in the centre highlighted by five star-tipped stamens and encircled by the words "Hong Kong Special Administrative Region of the People's Republic of China" in Chinese and “HONG KONG” in English.

Regional Flag or Hong The Regional Flag of Hong Kong, as defined in the Regional Flag Ordinance, Kong Flag being a red flag with a bauhinia highlighted by five star-tipped stamens.

Regional Flag Regional Flag and Regional Emblem Ordinance (Instrument A602 of the Laws Ordinance of Hong Kong)

Report This report issued by HKNLOG

Report Period The period between 17 August 2019 and 1 October 2019, inclusive

Road Traffic Ordinance Road Traffic Ordinance (Cap. 374 of the Laws of Hong Kong).

Road Users Code Road Users Code issued by the Transport Department

Societies Ordinance Societies Ordinance (Cap 151 of the Laws of Hong Kong)

Summary Offences Summary Offences Ordinance (Cap. 228 of the Laws of Hong Kong) Ordinance

Trade Unions Ordinance Trade Unions Ordinance (Cap. 332 of the Laws of Hong Kong)

Waste Disposal Waste Disposal Ordinance (Cap. 354 of the Laws of Hong Kong) Ordinance

Weapons Ordinance Weapons Ordinance (Cap. 271 of the Laws of Hong Kong)

We also refer to “public gatherings” as an inclusive and neutral term. It should be taken to include reference to a public meeting and/or public procession, as the context requires.

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Part I – Executive summary

1 BACKGROUND

Hong Kong has a long history of largely peaceful public gatherings. Freedom of expression and assembly are enshrined in Article 27 of the Basic Law, and Article 4 requires Hong Kong to safeguard the rights and freedoms of its residents and other persons within its jurisdiction in accordance with the law.

However, recent events that involved the proposal (and subsequent withdrawal) of the Extradition Bill have resulted in an ongoing series of public gatherings across a wide political and social spectrum, ranging from peaceful through to extremely violent in nature. These build upon earlier activities such as the “Occupy” movement in 20143 and have involved a significant number of actions including public processions and meetings, sit-ins and human chains. They have also been marred by unlawful activities such as individual attacks, group violence, arson, damage to property, privacy breaches, intimidation, and other discriminatory behaviours, which are allegedly linked to the peaceful and legally protected activities.

Against this backdrop, HKNLOG was formed by a group of Hong Kong lawyers to reflect our professional duty to uphold the rule of law. Amongst other things, this has involved HKNLOG Members attending public gatherings as Observers and providing community training to build awareness of Hong Kong residents’ rights and obligations. Further details are provided in paragraph 5. Despite being less than a year old, HKNLOG currently has over 50 Ordinary Members, all of whom are resident in Hong Kong and registered legal practitioners. Our members come from across the spectrum of age, seniority, race, gender, religion, ethnicity and political views.

2 OUR OBSERVATIONS

Following our establishment in August 2019, we attended several public gatherings during the Report Period. Overall, we observed that many Participants generally expressed themselves through peaceful, non-violent means. These included sit-ins, marching silently, waving placards, chanting slogans, singing various songs and forming human chains.

We also observed certain activities that could amount to aggressive, violent and/or unlawful conduct on the part of both Participants and the Police. The intensity of such conduct has increased throughout the Report Period.

In Part III we set out our direct observations in relation to:

(a) Participants;

(b) the Police;

(d) certain frontline volunteers.

These include matters relating to freedom of expression, violence and property damage, searches, the use of force and chemical irritants, kettling, various dispersal tactics and arrests, as well as

3 From approximately 26 September 2014 to 15 December 2014, also referred to as the Umbrella Movement or similar.

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“doxxing" and privacy law breaches. The cumulative effect of all of these matters is a significant breakdown of trust and further escalation of mutual hostilities.

We are especially concerned about the scale of these issues. For example, we are concerned about the number of people arrested (close to 2,400 in early October 2019,4 and approximately 4,500 as at 18 November 2019.5 We do not comment on the appropriateness of each arrest given the early stage of most Court cases, save as to note that we are aware of allegations of “mass arrests” and the potential for radicalisation. 6 Ultimately, the role of the Police cannot be to intimidate nor punish the public; it is to enforce the law, in compliance with relevant standards. Where an arrest occurs in appropriate circumstances, that role also involves putting arrested persons through the legal system as quickly as possible. Breaches of privacy laws have also been massively widespread across the spectrum of political affiliations, involving at least 1,297 suspected criminal cases as at 21 October 2019.7

We also raise in Part IV a number of matters that have been widely reported, in an effort to provide a legal perspective on these issues. This is especially important as we have not been able to attend all public gatherings given their volume and scale, nor have we been able to see everything that happens at the events that we have attended. Therefore, we have also drawn upon the experience of our HKNLOG Members more broadly in their professional capacities and as members of the public living through these events.

3 CASE LAW

Many cases have yet to come before the Courts. In Part V, we have included a selection of key cases that have come before the Courts and for which reported decisions have been given. Case law provides a valuable source of information about how Participants should be exercising their rights lawfully, and how the Police should be exercising their powers lawfully.

4 OUR RECOMMENDATIONS

Despite the withdrawal of the Extradition Bill on 23 October 2019, there appears to be no end in sight for the current social unrest in Hong Kong. Four of the “five demands” of certain Participants continue to be unmet: an independent commission of inquiry into Police conduct, a retraction of the classification of Participants as rioters, amnesty for arrested persons and genuine universal suffrage.

Although coming after the Report Period, it is important to note that the recent District Council elections may also have an impact on events in Hong Kong, given the large number of pro- democratic candidates elected. The District Council elections and any consequences of them are outside the scope of this Report.

HKNLOG does not have a position on the “five demands” themselves, but we note that the lack of progress towards resolving them means it is likely that public gatherings will continue and may continue to escalate until an appropriate resolution is identified and implemented by the Government. It is also possible that the recent success of pro-democracy candidates in the recent District Council elections may also embolden certain Participants. It is beyond the scope of our mandate and this Report to examine what this resolution may look like.

However, having regard to our experience both on the frontline and in our professional capacity, we are strongly of the view that a mechanism for resolution of these demands should be prioritised

4 As reported in https://www.scmp.com/news/hong-kong/politics/article/3032429/nearly-third-hong-kong-protesters-arrested-over- past-four. 5 See https://www.scmp.com/news/hong-kong/politics/article/3038275/hong-kong-protests-police-arrested-nearly-4500-people. 6 See, for example: https://www.scmp.com/news/hong-kong/politics/article/3025412/mass-arrests-hong-kong-protesters-police- could-backfire. 7 See paragraph 9.1 for further details relating to doxxing.

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to ensure that Hong Kong can maintain its “One Country, Two Systems” framework8 and its status as an international financial centre,9 each of which have been laid down in the Basic Law, together with other important principles.

As a result of the observations, we have raised various concerns about how the rule of law is being harmed. We urge all stakeholders to address these concerns and we make the following recommendations:

Recommendation 1 Respect for the law.

As a fundamental starting point, all parties must seek to respect the law, and must be prepared to be accountable for a breach. This includes the Participants and the Police.

Recommendation 2 Understanding the “rule of law”.

There must be stronger awareness by all parties and the public about what the “rule of law” actually means. It is not “rule by law” nor “rule through force by the authorities”. We urge the Government, Police officers, Participants and members of the public to be better informed about this principle and ensure it is understood, communicated and followed appropriately.

Recommendation 3 Preserving the independence of the judiciary.

All parties must respect the judiciary’s role in the rule of law. In particular, the judiciary must be allowed to continue to exercise its judicial power independently, free from any interference, as prescribed by Article 85 of the Basic Law.

Recommendation 4 Supporting freedom of expression and assembly.

The ability of residents to express their views lawfully and participate in public gatherings must be protected. This requires the Police to:

(a) ensure that they object only in the most extreme circumstances, when no other options (including setting conditions and limitations) are available;

(b) be respectful of a public gathering and its Participants, where they are exercising their lawful rights; and

However, this also requires Participants to be respectful of others’ views, even if they are very different to their own, and to follow reasonable orders to accommodate other stakeholders such as road users. Participants should always prioritise safety and appreciate the rights of other members of the public.

8 Chapter I, Basic Law. 9 Article 109, Basic Law.

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Recommendation 5 Ceasing violence and destruction.

Violence and lawbreaking are an anathema to the rule of law. There must be steps taken by all parties to cease the violence and destruction, as this is a direct challenge to the rule of law. We urge all parties (including Participants, Police and Government) to end the acts of violence and property destruction, rather than simply using a call to end violence as an opportunity to blame others. Any claim to the use of force by the Police must be lawful (i.e. necessary) and must be justifiable in each situation. Personal attacks are unlikely to be legally justifiable unless in self-defence.

Recommendation 6 Avoiding discriminatory behaviour, threats and intimidation.

In order to restore civility and calm, there needs to a de-escalation of the hostile environment, tension and suspicion that currently exists between the various sides. This is also necessary to ensure that rational and discussions can occur. Therefore, we call on all parties to steer away from discriminatory behaviour, and to preserve the rights of their fellow individuals to free speech, free assembly, and to privacy as provided under the law.

We are very concerned about generalisations, discriminatory treatment and threats directed to anyone, including persons speaking Putonghua, non-ethnically Chinese persons, persons related to Police officers, those expressing different views, or otherwise. Discrimination, intimidation and threats should not be tolerated by anyone, and steps must be taken to address these. All parties should preserve the rights of their fellow individuals to free speech and free assembly.

Recommendation 7 Respecting privacy rights.

Privacy laws must be respected and criminal doxxing must continue to be investigated appropriately, fairly and impartially no matter the affiliation of the person affected. Children must be especially protected. We also support a review of Hong Kong’s privacy laws to ensure that they are capable of being adequately understood and properly enforced.

Recommendation 8 Exploring all non-violent means for resolution.

We consider that additional efforts should be made by the Government, Participants, members of civil society, and members of the public to explore non-violent channels to express their views and seek to influence Government as appropriate. Whilst not an end in themselves, public fora, properly conducted surveys, well-researched avenues of potential solutions, and well-considered policy advocacy have the opportunity to help move the situation forward. This recommendation applies to all parts of the political spectrum.

Recommendation 9 Enhancing Police conduct and accountability.

The Police plays a crucial role in ensuring a safe and stable society by upholding the rule of law and the administration of justice. For this reason, Hong Kong law grants the Police a broad set of special powers and discretions on matters such as protecting the general public from

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criminal behaviour, determining the level of force to be used in a given circumstance and when to stop, search and arrest suspects. However, those powers and discretions are not absolute. They must be exercised reasonably and with adequate oversight. To enable this to occur, this requires at least the following:

9A: “Tone from the top” from the Government and senior members of the Police. Police must be held to a high standard to maintain public confidence. These expectations must be communicated consistently throughout the ranks.

9B: Identification. Distrust in the Police within certain parts of the Hong Kong community has been exacerbated when Police officers do not display any individual identification on their uniforms, contrary to our understanding of the requirements and directives imposed upon them. This can create the perception that such officers intend to evade accountability for their actions. We do not find credible any claim that there is insufficient room on Police uniforms for this.10 Criminal doxxing and harassment of individual officers is to be condemned and should continue to be handled through established legal mechanisms.

9C: Compliance and integrity. As a public authority with specially granted powers and instruments, the Police must hold itself to the highest standard at all times, even if others do not. Police powers must only be exercised in accordance with the rules with which they are granted. Irrelevant, antagonistic and damaging behaviour such as the use of slurs against Participants and other members of the public (e.g. referring to them as “cockroaches”) must cease. Any physical force employed by the Police must always be only that which is lawful.

9D: Justifiable arrests and using defusing techniques. Given the significant impact on individuals and the administration of justice, all arrests must be legally justifiable. We are alarmed at allegations of a potential “mass arrest” strategy11 and non- compliance with custody procedures.12 We recommend that:

(a) further training be given to Police regarding when an arrest is justifiable;

(b) Police be appropriately disciplined (individually and/or on a ‘per unit’ basis) if they cannot demonstrate compliance with arrest pre-conditions and procedures, including full compliance with requirements in respect of females, minors and the physically impaired who are arrested;

10 Based on both our own direct observations and related reports; see https://www.hongkongfp.com/2019/06/21/hong-kong- activists-complain-police-failed-display-id-numbers-security-chief-says-uniform-no-room/. 11 See footnote 6. 12 See paragraph 10.4.

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for example, not engaging with Participants even if they are badgering Police, so long as they are not breaking the law. In March 2014, the issued guidelines to officers about this and we believe these are worth updating and re-issuing.13 It also involves not using slurs, as noted above. Participants should be given reasonable time to comply with Police instructions – for example, if given a warning that pepper spray or tear gas may be used, or when requesting identification from Participants.

9E: Fairness and neutrality in the execution of duties. Suspected breaches of law by persons on any part of the political spectrum should be investigated and pursued in a fair and neutral fashion, free from any political considerations. The Police must be, and must be seen to be, impartial. This includes, for example, treatment of the National Flag and acts of violence. Lawbreakers must be pursued with equal vigour and fairness, regardless of their political affiliation.

9F: Due regard for public safety. An assessment should be made as to the effectiveness of dispersal and crowd-management techniques, including kettling, tear gas, kinetic weapons, weapons etc, and their impact on the general public, including children and other vulnerable members of society. We are concerned by the particularly widespread use of tear gas when there is no apparent need, or when no / few Participants are in the vicinity, as well as the lack of sufficiently prominent notice to both Participants and potential bystanders. There have also been concerns over the use of expired tear gas, and the composition of tear gas used. These concerns surrounding public safety must be acknowledged and addressed by the Police.

9G: Undercover Police rules. Undercover officers can play an important role in criminal investigations. However, in light of controversies surrounding their use, there needs to be greater clarity regarding the rules that apply to their deployment and their actions.

9H: Swift investigation of allegations. Alleged breaches of the law must be investigated fully, swiftly and without regard to individuals’ political views. This includes both individual acts, as well as any allegation of the existence of a triad society or organised crime. Due consideration must also be given from a systemic standpoint as to the most appropriate mechanism for investigations of failures to properly investigate, allegations of collusion between Police and organised crime gangs (such as triads), to ensure that the entire process is credible, transparent, and robust, which may include proper oversight or appeals to an independent body outside of the Police force itself.

13 Guidelines for Handling Abusive Behaviour by Members of the Public, https://www.police.gov.hk/ppp_en/11_useful_info/abusive.html.

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9I: Transparency. Police should clarify through published guidelines, their approach to matters of public interest. This includes those relating to investigations of allegations and when and what steps are taken to ensure that the use of force and particular tools used are reasonable, necessary, proportionate and only as an option of last resort.

9J: Public announcements. These must be balanced and factual. Where they are later discovered to be incorrect or untruthful, steps must be taken to rectify this and if deliberate, the relevant Police officers must be held to account, including as with any other unlawful activity by a Police officer.

Recommendation 10 Better treatment of minors.

Public gatherings have involved significant numbers of minors, and approximately one third of arrestees over the four months leading to 10 October 2019 were aged under 18.14 The age of criminal responsibility is 10 under the Juvenile Offenders Ordinance, which has been the subject of concern in Hong Kong over many years. This must be reviewed, together with an appropriate review of the position of arrested minors generally. Relying on Police or prosecutorial discretion only is insufficient.15

Recommendation 11 Ensuring medical attention is provided with adequate priority.

Emergency treatment by frontline medics, as well as fulsome treatment in hospitals and medical centres, must be made available irrespective of the identity and status of the injured person. First aid teams should also not be exposed to the risk of arrest or other retaliation when they are carrying out their duties, nor to harm by any party. Police should not target them for arrest, or hinder them as they go about their duties. Police should also not be searching hospital records without proper warrants or authorisations. First and foremost this ensures members of the public can confidentially and promptly access medical care without fear.

Recommendation 12 Ensuring access to legal representation.

The Basic Law rights in Article 35 in relation to legal representation, judicial adjudication and related procedures must be respected. In particular, no action should be taken or avoided, that would prevent a person from being able to obtain legal representation. This includes not hampering arrested persons from displaying their identity and providing their identification details to surrounding persons to enable family or friends to arrange legal representation on their behalf, and ensuring that legal counsel have appropriate access to clients.

Recommendation 13 Respect for the media and responsible reporting.

Respect for the freedom of the press must continue to be prioritised, including ensuring that the press are able to access relevant information

14 As reported by the Chief Secretary for Administration, Mr Matthew Cheung Kin-chung on 10 October 2019 – see: https://www.scmp.com/news/hong-kong/politics/article/3032429/nearly-third-hong-kong-protesters-arrested-over-past-four. 15 There have been several papers written on the subject over several years, including the Law Reform Commission Report on the Age of Criminal Responsibility in Hong Kong dated May 2000, responses to that report such as by in LC Paper No. CB(2)2298/00-01(01), Legislative Council discussions in May 2006, and various other publications.

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and not be hampered in their reporting duties, and not unduly targeted by Police with weapons as appears to have happened on some occasions. At the same time, we urge all journalists to ensure that their reports are thoroughly researched, that journalistic standards are upheld, and that any facts and materials (including footage) are presented with the proper and necessary context or clearly caveated.

Recommendation 14 Respect for observers.

The role of observer groups, like HKNLOG, and other civic organisations, is to ensure and improve the rule of law and provide civic oversight. While everyone must comply with applicable law, equally civic groups should not be unreasonably hampered in the conduct of our lawful activities. Where there may be exceptional circumstances where our activities may hinder Police operations or there are issues of safety, then these should be clearly and professionally communicated to the relevant groups.

Recommendation 15 Prioritising the health and safety of employees and contractors.

All employers should carefully consider their policies and procedures in relation to the health and safety of their employees and contractors who have been impacted by the current social unrest, and take pro-active steps to accommodate the impact of public events on them.

Recommendation 16 Respecting employees’ Basic Law rights.

We strongly recommend that rights established under the Basic Law be respected by employers to the maximum extent possible. Without limitation, we strongly support the ongoing respect, and practical protection, of free speech. It is critical to the rule of law and functioning of society that analysis and even criticism be permitted. Any standards imposed by employers with respect to the free speech rights of their employees (such as on social media) must be fair and proportionate with respect to the rights under the Basic Law.

Importantly, none of our observations, recommendations or selection of resources should be taken as political commentary or the advancement of any political agenda. Unfortunately, the very fact that this disclaimer needs to be made when commenting on the law speaks to the increasingly polarised and sensationalised nature of public discourse and threats to the fundamental principles of the rule of law. Nonetheless, we wish to affirm that HKNLOG is politically neutral, and only seeks to uphold the rule of law, and related principles of fairness and justice, in their fullest sense. The Report and our recommendations speak only to restoring and strengthening the rule of law, and aim to help avoid a repeat of events that have led us to the current situation.

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Part II – Introduction

5 ABOUT HKNLOG

5.1 Overview

HKNLOG is a neutral and independent group of members of the legal profession resident and registered in Hong Kong. It was established in response to events in Hong Kong starting from the summer of 2019, with the purpose of HKNLOG Members acting in the public interest to support and uphold the rule of law in Hong Kong.

HKNLOG is neutral in its stance towards the objectives of the participants in demonstrations and public gatherings that we observe, and does not support any particular political party or viewpoint. However, we support the right of Hong Kong residents to express their political views in accordance with the full protections provided under Hong Kong law, including Chapter III of the Basic Law and associated legislation.

Therefore, one of the key aims of this Report is to assist all stakeholders, and the public in particular to understand and to exercise their rights to speak, assemble, and seek redress of their grievances in accordance with the law.

Our existence and activities are grounded on the belief that the legal profession has an important duty to uphold the rule of law. As Hong Kong’s Chief Justice Geoffrey Ma states in the Foreword to the Hong Kong Solicitors’ Guide to Professional Conduct:

“Lawyers have a pivotal role in the administration of justice, a role that is defined by the fearless and independent defence of rights, not just for individual clients but also for the community as a whole.”

Lawyers act as community standard-bearers, defending legal rights and protections with the ability to operate apolitically. We look at events through a legal, rather than political, lens. In difficult times, that role becomes especially important.

5.2 Legal status

HKNLOG is a registered society under the Societies Ordinance (Cap. 151 of the Laws of Hong Kong). It is not a corporation and does not have separate legal personality. HKNLOG Members are individuals acting in their personal capacities.

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5.3 Our mandate

HKNLOG’s mandate is as follows:

(a) Assisting our colleagues in the legal profession in discharging their obligations to clients and in the administration of justice.

(b) Conducting research into the full extent of the rights and obligations of Hong Kong residents under the law and disseminating that information quickly, efficiently, and widely.

(c) Educating and training all Hong Kong residents as to their rights and obligations under the law and encouraging everyone to exercise those rights lawfully, without violence.

(d) Attending public gatherings as independent, neutral observers to provide information (where appropriate) and/or record and collect evidence of unlawful behaviour in aid of proceedings.

(e) Conducting ourselves, at all times, professionally and within the boundaries of our professional obligations and the principles stated herein.

6 OUR ACTIVITIES DURING THE REPORT PERIOD

6.1 Key activities

We established HKNLOG in August 2019.

Our key activities during the Report Period included the following:

(a) Conducting briefing sessions for HKNLOG Members about the group and its activities.

(b) Attending various public gatherings organised by persons across the political spectrum, for the purposes of our mandate. Further details of these gatherings are set out in paragraph 6.2.

(c) Research into legal issues observed and the preparation and dissemination of materials for the public on legal rights and obligations.

(d) Providing community legal education seminars to approximately 150 members of the public on their rights and obligations in connection with public gatherings, as well as related issues such as privacy rights and obligations.

(e) Responding to inquiries from members of the press and the public.

(f) Preparing this Report.

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6.2 Public gatherings attended

This Report summarises key observations of HKNLOG Observers during the Report Period and associated research and analysis. During the Report Period, HKNLOG Observers attended the following public gatherings as neutral, independent observers.

No. Date Event name Location Organiser

1 17 August 2019 Oppose Violence, Tamar Park Hong Kong Save Hong Kong rally Island Federation

2 18 August 2019 Peaceful, rational, Victoria Park to Chater CHRF non-violent assembly Garden

3 31 August 2019 CHRF Criticise Chater Garden; then CHRF Chinese Liaison Office Causeway Bay / Wanchai

4 1 September 2019 Airport Stress Test Hong Kong International No official Airport / Tung Chung organiser

5 4 September 2019 Citizens' Press Admiralty No official Conference organiser

6 8 September 2019 HK Human Rights & Chater Garden to US No official Democracy Act Consulate General organiser Assembly

7 15 September 2019 Hong Kong Island Admiralty / Central CHRF March

8 28 September 2019 Anti-authoritarianism Tamar Park CHRF rally

9 29 September 2019 Global Anti-Terrorism Causeway Bay to Chater No official Rally Garden organiser

10 1 October 2019 Dress in Black Day Victoria Park to Wanchai No official and Admiralty organiser Admiralty to Wanchai and Causeway Bay

We refer to each individually as an “Observation” in other parts of this Report. Some of these involved multiple teams at different locations and at different times of day.

It is important to stress that during these events, we have attended as legal observers, and not as Participants. Each HKNLOG Member and each Observation we attend is subject to strict rules, procedures, and processes that ensure both the safety of our members and their identity as observers and not Participants.

Observations supported by other experience

Since the Report Period, we have also attended multiple other public gatherings, which will be covered by other reports. These have generally echoed the experiences noted in this Report.

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Many of our Observers also have significant additional experience with public gatherings and related issues such as property damage, social media and arrests, including in the capacity as lawyers and general observers. This has facilitated a deeper understanding of the events, although we recognise that we are not undertaking a comprehensive review into these events nor are we (in the case of an alleged breach of law) undertaking a judicial process of any given allegations or incidents.

7 ABOUT THIS REPORT

7.1 Purpose, scope and limitations

This Report has been prepared by HKNLOG for the sole purpose of:

(a) reporting on what we have seen during our Observations and other topical issues relating to or arising from public gatherings and related activities in Hong Kong during the Report Period (in Parts III and IV);

(b) providing a summary of relevant Court cases handed down during the Report Period (in Part V); and

(c) raising awareness of key legal issues relevant to public gatherings and potential concerns that we believe warrant further focus by the Government, Police, Participants and members of the general public, in connection with (a) and (b) above.

This Report does not cover Hong Kong’s international obligations, save to the extent such obligations are already implemented into local legislation and expressly noted.

This Report is not an exhaustive or comprehensive catalogue of events, nor does this Report cover events outside the Report Period. It is also not exhaustive in its discussion of analysis of events, and must not be relied upon as legal or professional advice of any kind. The issues it raises are complex, including many which must ultimately be adjudicated pursuant to judicial and/or administrative procedures, and we do not seek to comprehensively address these. For example, Hong Kong law also recognises certain defences to conduct we have identified, but which we do not explore in full. Also, actions such as incitement and conspiracy can also result in criminal consequences, and various private causes of action may apply to the conduct we have described. As always, the facts and circumstances would need to be taken into account.

Whilst we have endeavoured to ensure that everything in this Report is factually accurate to the best of our abilities, we do not accept any liability for errors or matters that involved additional context. Readers must exercise their own care and diligence, and undertake such further research and obtain such professional advice as required.

This Report is prepared in the public interest and is published independently by HKNLOG. Copyright is asserted by HKNLOG. All other rights are expressly reserved. Without limitation, we ask that there be no reference to this Report that misrepresents its contents, or HKNLOG generally.

Any inquiries should be directed to [email protected] or via our website www.legalobservers.org.hk.

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Part III – Our observations

HKNLOG members have observed a number of matters of concern both physically in person (see section 8) and from primary digital materials (see section 9). We describe those matters below, together with our comments on the key potential legal issues.

Importantly, our observations and comments should not be treated as a concluded view on any matter, nor as political commentary or legal advice. These require thorough investigation, taking into account the relevant context and available evidence.

8 IN-PERSON OBSERVATIONS BY HKNLOG OBSERVERS

In this section, we describe the key events we have witnessed during public gatherings during the Report Period. These are divided into the following categories, although some of the issues overlap:

A Participants in public gatherings B Police C Journalists D Frontline volunteers

There are several other categories of individuals and groups that we have seen during Observations and of which we are aware, such as other observer groups. However, in this Report we have only focused on the groups with whom we have had the closest contact. We may report on other groups in future.

A Participants of public gatherings

8.1 General observations of Participants

We attended several public gatherings during the Report Period. Overall, we observed that many Participants generally expressed themselves through peaceful, non-violent means. These included marching silently, waving placards, chanting slogans and singing various songs.

However, we observed certain activities that could amount to aggressive, violent and/or unlawful conduct. The intensity of such conduct has increased throughout the Report Period.

8.2 “Unauthorised” public gatherings and routes

(a) Our observations

We have been present during public gatherings as observers that have not been granted a No Objection Letter from the Police (either because no application was made or because the application was rejected). Such “unauthorised” public gatherings have been commonplace and included, for example:

(i) an extension of the "Oppose Violence, Save Hong Kong" 'pro-Police' Public Gathering on 17 August 2019, beyond the official location in Tamar Park, Admiralty into the Central Harbourfront;

(i) the "Airport Stress Test" Public Gathering on 1 September 2019; and

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(ii) a public gathering in the form of a march on 15 September 2019, after CHRF reportedly applied for but was refused a No Objection Letter for the 'Hong Kong Island March'. In spite of CHRF publicly cancelling the organised event, a public gathering in the form of a march took place (organiser unknown).

In certain cases, “approved” public gatherings have taken different routes or resulted in further public gatherings in “unauthorised” locations, for various reasons. For example:

(iii) on 18 August 2019, a No Objection Letter was granted for a public gathering in the form of a public meeting in Victoria Park. We observed that Victoria Park filled up and Participants were no longer able to enter the Park from approximately 14:30. There were two key flow-on consequences:

(A) participants overflowed into surrounding streets towards Tin Hau and Causeway Bay / Wanchai; and

(B) there was also a subsequent procession from Causeway Bay to Central; and

(iv) on 29 September 2019, a No Objection Letter was granted for a Public Gathering at Tamar Park, Admiralty, but Participants exceeded the area covered by the No Objection Letter.

(b) Key potential legal issues

Overarching principles

Article 27 of the Basic Law and Section 8, Article 17 of the Bill of Rights Ordinance recognise the right of peaceful assembly. However, the right of assembly may be restricted if such restrictions are in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.16

Hong Kong requirements

Any public meeting of more than 50 persons17 and any public procession of more than 30 persons18 must be notified to the Commissioner of the Police in advance, and can only take place if the Police has not prohibited or objected to it.19 Public meeting and public procession are defined broadly.

The Police Commissioner can prevent such a meeting or procession where he reasonably considers it to be necessary in the interests of national security or public safety, public order or the protection of the rights and freedoms of others.20 He can also impose such conditions on any public meeting or public procession as are necessary to address any relevant such concerns.21

Every public meeting or public procession must in any event comply with certain statutory conditions, including that good order and public safety will be maintained.22 The Police can

16 Article 17 of section 8 of the Bill of Rights Ordinance. 17 Sections 7-8, Public Order Ordinance. Section 7(b) also prohibits any meeting in private premises of 500 persons or more that has not been notified to the Police or has been notified but prohibited. 18 Sections 13-13A, Public Order Ordinance. 19 Sections 7 and 13 of the Public Order Ordinance. 20 Sections 9(1) and 14(1) of the Public Order Ordinance. 21 Sections 11(2) and 15(2) of the Public Order Ordinance. 22 Sections 11(1) and 15(1) of the Public Order Ordinance.

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stop or disperse any meeting or procession that has not received a No Objection Letter or which breaches any condition on its occurrence, including the condition that good order and public safety be maintained.23

Various offences exist under the Public Order Ordinance in respect of public gatherings, including the following:

(i) Publicising any public meeting or public procession which has not received a No Objection Letter, that is, an “unlawful assembly” (maximum penalty of 12 months’ imprisonment and a fine of up to HK$10,000).24

(ii) Attending any unlawful assembly (maximum penalty of 5 years’ imprisonment).25

(iii) Taking part in an assembly at which 3 or more persons are behaving in a noisy and disorderly, intimidating, insulting or provocative manner with the intention or likely effect of creating a reasonable fear that they will commit a breach of the peace (maximum penalty of 5 years’ imprisonment). A person can be guilty of this offence even if the original assembly was lawful.26

Riots

An unlawful assembly at which any person commits a breach of the peace is a “riot” under Section 19 of the Public Order Ordinance.

Any person attending such an assembly is “riotously assembled” and can be sentenced to up to 10 years’ imprisonment, even if they merely attend an otherwise lawful assembly at which another person commits a breach of the peace.

The Public Order Ordinance contains broad restrictions on the right to assembly, and on conduct at public assemblies. The imposition of conditions on a public meeting or public procession by the Police Commissioner should be limited to conditions which are necessary in the interests of national security, public safety, public order or for the protection of the rights and freedoms of others. However, even where no conditions have been imposed in respect of any public meeting or public procession, the Public Order Ordinance grants broad powers to the Police to restrict or curtail a public gathering and conduct at it, particularly where there is a breach of the peace. “Breach of the peace” is not defined in the Public Order Ordinance.27

The Public Order Ordinance was introduced as a response to riots in Hong Kong in 1967. The obligation to obtain confirmation of no objection from the Police was removed with effect from 1995, but was reinstated in 1997.28 We note29 that the requirement under the Public Order Ordinance to notify the Police of a public gathering has been claimed to

23 Section 17, Public Order Ordinance. 24 Section 17A(1)(d), Public Order Ordinance. 25 Section 17A(3), Public Order Ordinance. 26 Section 18, Public Order Ordinance. 27 However, it has been defined in prior common law to occur “when a person reasonably believes harm will be caused, or is likely to be caused, to a person or in his presence to [their] property, or a person is in fear of being harmed through an assault, affray, riot, unlawful assembly, or some other form of disturbance”: R v Howell [1982] QB 416. 28 See, Freedom of Assembly Rights and the Public Order Ordinance, Hong Kong UPR Coalition Steering Committee (https://www.justicecentre.org.hk/framework/uploads/2018/11/HKUPR-Coalition-Fact-Sheet-Freedom-of-Assembly-Rights-and- Public-Order-Ordinance.pdf). 29 As noted above, this Report does not consider the HKSAR Government’s compliance with international legal obligations. We note however that consideration of rights afforded under the ICCPR, and restrictions placed on such rights, are an integral element of compliance with the Basic Law and the Bill of Rights Ordinance.

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breach Article 21 of the ICCPR, and consequently Article 39 of the Basic Law and Hong Kong domestic legislation in the form of the Bill of Rights Ordinance.30

The Hong Kong Courts have, however, held that the obligation to notify the Police of a public gathering under the Public Order Ordinance is constitutional31 and have convicted defendants of rioting under Section 19 of the Public Order Ordinance.32

We are concerned that the Police may have been using the mechanism under the Public Order Ordinance to restrict the freedom of assembly beyond that which is envisaged by the Basic Law and the Bill of Rights Ordinance. In particular, we are concerned that public gatherings may have been too severely restricted (for example to a confined location not large enough to contain the estimated number of attendees), resulting in an almost inevitable breach of the law.

Recommendations

We recommend that the Police use the No Objection Letter mechanism in the Public Order Ordinance sparingly, in accordance with the principles of the Bill of Rights Ordinance, the Basic Law and the ICCPR. In particular, we recommend that No Objection Letters be withheld only where truly necessary to protect safety, and conditions imposed on public gatherings only so far as strictly necessary. Excessive limitations imposed through the No Objection Letter mechanism may result in further legal challenges to the manner in which restrictions are being imposed in practice to circumvent the “precious” and “fundamental right” to peaceful assembly.33

In the current circumstances, however, including the serious penalties that can flow from attendance at public gatherings that have not received a No Objection Letter and/or at which others may breach the peace, we recommend that any person taking part in a public gathering do so in a peaceful, non-violent manner, and maintain significant distance from any conduct that could be interpreted as a breach of the peace.

A holistic review of the approach to public gatherings would also assist in de-escalating the general situation in Hong Kong, as would an appropriate consideration of the underpinning issues. See paragraphs 8.17 to 8.19 as to dispersal tactics, which we believe are closely linked to the perspectives of Participants and which we have observed as being more serious at unapproved public gatherings, which have been frequent.

8.3 Shielding identity / masking

Please also refer to paragraph 8.13 regarding masking/identification by Police, and 8.20 regarding identification of journalists.

(a) Our observations

We have observed the widespread use of various masks during our Observations. This includes disposable clinical-style half-face masks that are also used when people are unwell, reusable half-face masks and coverings, and (from around late September) full face masks to some degree, including the “Guy Fawkes” style mask.

30 Outdated and Draconian: Hong Kong’s Public Order Ordinance Hong Kong Watch report, July 2019 (https://static1.squarespace.com/static/58ecfa82e3df284d3a13dd41/t/5d25c0676c3cb30001e74f6b/1562755179422/hkw+report _jul19+%283%29.pdf?fbclid=IwAR3n73pFpuYFOgR43ehrYrpKHkd8d6z9YrIGLsI-jSbz_P8FyZh395VVa9w). 31 Leung Kwok Hung and Others v HKSAR (2005), FACC Nos. 1&2 of 2005, at https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=45653&currpage=T. 32 Including in HKSAR v Leung Tin Kei, Lo Kin Man and Wong Ka Kui [2018] HKCFI 1329. (https://www.doj.gov.hk/eng/public/pdf/2018/HCCC408_2016e.pdf). The defendants were sentenced to 4.5, 6 and 7 years. 33 Leung Kwok Hung, at §1.

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By way of example, at our 28 September 2019 Observation at Tamar Park, we estimated that approximately 90% of the Participants at the scene wore masks. However, these were mostly half-face style masks only.

We have also observed widespread use of glasses and goggles. However, with some exceptions, these have primarily been used when there is a threat of tear gas. Gas masks have also been prevalent amongst Participants, observers (including HKNLOG Observers), journalists and volunteers, generally being put on at times of expected escalation, such as when riot Police arrive to disperse Participants.

We have also seen Participants being asked by the Police for their identification documents. We did not ourselves observe any refusal to do so, but we are aware from other media reporting that there have been allegations to this effect.34

We have also seen certain Participants use laser pointers, which we understand may represent an effort to disrupt photography and identification.35

(b) Key potential legal issues

Hong Kong law respects rights to privacy,36 although not necessarily full anonymity.

More specifically, during the Report Period, there were no specific restrictions on the use of masks as such, although that is the subject of proceedings in relation to the Anti-Mask Regulation, as at the time of writing this Report.

However, the Police have longstanding powers to compel proof of identity. In particular, Section 17C of the Immigration Ordinance requires Hong Kong residents from the age of 15 to:

(i) carry proof of identity, which generally means their HKID card;37 and

(ii) to produce such proof of identity on demand for, amongst others, a Police officer in uniform (or who produces, if required to do so, documentary evidence issued to them as proof of appointment as a Police officer).

A failure to do so may result in arrest under Section 17D of the Immigration Ordinance, unless an exception applies. The Police website further notes:

“Depending on the circumstances and attitude of the person being checked, a [P]olice officer may issue a verbal warning, bring the person back to the [P]olice station for further enquiry, take summons action or even arrest the person concerned.”38

Even where Police officers are in uniform, they should identify themselves appropriately, as described in further detail in paragraph 8.13.

34 For example, see https://www.hongkongfp.com/2019/11/23/i-cable-news-complains-police-treatment-23-reporters-photojournalist- may-james-granted-unconditional-release/. 35 See https://www.washingtonpost.com/world/2019/08/01/hong-kong-protesters-are-using-lasers-distract-confuse-police-are- pointing-them-right-back/. 36 As to privacy law generally, see paragraph 9.1. 37 See Section 17B of the Immigration Ordinance for other valid of proof of identity documents. 38 https://www.police.gov.hk/ppp_en/11_useful_info/power_id.html.

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Subject to the Anti-Mask Regulation,39 Participants’ inherent right to preserve their privacy in accordance with Hong Kong law should be respected. At the same time, Participants must be prepared to show their proof of identity when lawfully requested by Police.

We recommend that:

(i) Participants continue to carry their HKID or other lawful proof of identity and produce it on demand by Police; and

(ii) Police make appropriate accommodation for any persons who require additional time to produce their proof of identity in the circumstances – for example, if they are affected by chemical irritants such as pepper spray.

8.4 Antagonistic behaviour

(a) Our observations

Participants' attitudes towards observer groups, including HKNLOG, have on the whole been quite positive from what we have seen and experienced. There have only been isolated incidences of antagonistic behaviour towards HKNLOG Observers.40

We have also observed extensive hostility towards Police, including the following:

(i) During Observation 3, at a gathering on Third Street in Sai Ying Pun, HKNLOG Observers observed a group of Participants shouting at Police.

(ii) During Observation 4, at the junction of Hennessy Road and Canal Road in Causeway Bay, an HKNLOG Observer observed a large crowd of Participants (in a variety of outfits, mostly general civilian clothing), standing in a group in front of a line of Police in riot gear, shouting loudly.

(iii) During Observation 6, we observed hostile language being used by Participants against Police (and, as indicated in paragraph 8.14, hostile language used by Police against Participants).

Please also refer to our comments regarding Police behaviour in paragraph 8.14.

(b) Key potential legal issues

In some instances, the targets of such antagonistic behaviour did not immediately appear to have been overly concerned from the conduct, and often (as was the case for HKNLOG Members) just walked away or used other techniques to de-escalate the situation. In those cases, it appeared that they did not consider the actions warranting a report (e.g. for criminal investigation). However, in other instances, it is possible that such behaviour could amount to intimidation or harassment, depending on all the facts.

Each of these is described as follows.

39 Should it be effective following final adjudication by the Courts. 40 For example, during Observation 1, which was a generally peaceful and well-organised “pro-Police” rally at Tamar Park, one Participant called our Observers “liars”, when he initially thought our Observers were members of the press and repeated that when he learned that HKNLOG Observers were neutral Hong Kong lawyers. The Participant told our expatriate Observers to "go home" and called one of our observers of Chinese descent a "traitor".

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Intimidation

It is an offence under the Crimes Ordinance to threaten someone, with intent to:

alarm them or any other person;

cause them or any other person to do any act which they are not legally required to do; or

cause them or any other person to not do any act which they are legally entitled to do.41

The threat could involve any injury to the person’s (or any other person’s) body, reputation or property, or any other illegal act. This includes injury to the reputation or estate of any deceased person.

Harassment

At a high level, to establish a case of harassment, each of the following elements must be established:

There must be words or action, directly or through someone else, that are sufficiently repetitive in nature that would cause emotional distress or annoyance to the target of the harassment or another person.

The alleged harasser must be at least thoughtless as to whether their actions would make you or any third person suffer from the harassment.

The target of the harassment must have suffered damage as a result of the harassment – this can include feelings of anxiousness or financial loss.42

Various other threats, assaults and property damage could also be illegal on various other grounds, as could conspiracy to commit certain acts.

Obstruction etc of Police

In addition, it is possible that shouting at, or otherwise antagonizing, Police in the lawful conduct of their duties could amount to certain offences, depending on the nature and seriousness of the circumstances. For example:

(i) Section 36 of the Offences Against the Person Ordinance makes it an offence to:

(A) assault, resist, or wilfully obstruct any Police officer in the due execution of their duty or any person acting in aid of that Police officer; or

(B) assault any person with intent to resist or prevent the lawful apprehension or detainer of that person or of any other person for any offence;

(ii) Section 63 of the PFO also contains various offences in relation to acts against Police officers, including:

(A) assaulting or resisting any Police officer acting in the execution of their duty, or aiding or inciting any person to assault or resist;

41 Section 24, PDPO. 42 These principles were established in Lin Man Yuan v Kin Ming Holdings International Ltd and Anor [2015].

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(B) refusing to assist any such Police officer in the execution of their duty when called upon to do so; or

(C) by the giving of false information with intent to defeat or delay the ends of justice, wilfully misleading or attempting to mislead any such Police officer.

It is doubtful that merely expressing a view in a loud and angry tone would amount to any of these offences, but this entirely depends on the facts of each case. For example, shouting coupled with threatening behaviour or physically preventing Police to reach a suspected criminal could be problematic. The provisions of the Public Order Ordinance set out below may also apply. However, there have also been instances where it appears the Police may have over-zealously used this as an excuse to arrest Participants who did not otherwise appear to have done anything objectionable. This is a concern, as it could amount to an abuse of Police discretion, infringe on the lawful rights of the Participants, and ultimately lead to wasted resources and poor administration of the rule of law.

At public gatherings generally

The Public Order Ordinance contains two key offences in relation to disorder in public places:

(i) Interference - Acting in a disorderly manner for the purpose of preventing the transaction of the business for which the public gathering was called (or inciting others to do so).

(ii) Noise, disorder, intimidation – Behaving in a noisy or disorderly manner, or using, or distributing or displaying any writing containing, threatening, abusive or insulting words, with intent to provoke a breach of the peace, or whereby a breach of the peace is likely to be caused.43

Freedom of speech is not absolute, and all parties should ensure that they do not cross the line when expressing their views. This includes avoiding harassment, intimidation, discrimination (e.g. racism) and obstruction.

We particularly urge the Police to continue to uphold the integrity of their position and not to escalate a situation by shouting back, swiftly threatening arrest or using derogatory language when Participants or other members of the public are angry and shout at them. De-escalation should be the priority.

43 Section 17B, Public Order Ordinance.

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8.5 Property damage / vandalism

Please also refer to paragraphs 8.6 (barriers), 8.7 (arson) and 8.8 (dangerous articles).

(a) Our observations

Throughout our Observations, we have seen significant property damage and vandalism across Hong Kong, including on streets, MTR stations, Government property and private property. Illustrative examples include the following:

On 31 August 2019, we observed several instances of vandalism, including defacement of MTR ticket machines in Admiralty Station and graffiti with political slogans on walls and streets in a variety of locations around Admiralty, Wanchai and Causeway Bay.

On 1 September 2019, at the “Airport Stress Test”, we observed some Participants breaking metal fences to use for barricades.

On 15 September 2019, we observed significant amounts of bricks being dug up from the pavement, metal fences being broken and poles being unearthed to create barricades on Queensway in Admiralty.

On various occasions, we have observed traffic lights being damaged / disabled.

(b) Key potential legal issues

Criminal damage generally

Pursuant to Section 60(1) of the Crimes Ordinance:

“[a] person who without lawful excuse destroys or damages any property belonging to another, intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.”

Vandalism can amount to “criminal damage” under the Crimes Ordinance, as ‘damage’ can include not only permanent or temporary physical harm, but also permanent or temporary impairment of value or usefulness. Examples of damage would include taking away a part of a structure so as to make the whole useless, disabling traffic lights so as to make it temporarily useless, dumping rubbish into MTR stations, applying water-soluble paint to a pavement and smearing paint on the wall of a Police station.

Roads and railways

Section 50 of the Road Traffic Ordinance makes it an offence to interfere with traffic signs or road markings, with a broad range of activities that would be caught, including damaging traffic signs. Section 51 prohibits unauthorised road signs or markings, although it is questionable whether this would extend to graffiti alone.

Damage involving the MTR is likely to be a breach of Section 5 of the MTR By-Laws.

Public gatherings

Part IV of the Public Order Ordinance also contains various offences relating to rioting and property damage.

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We stress that most of the public gatherings that we have attended, and a substantial majority of Participants, have been peaceful overall.

However, increasingly, we have seen violence and unlawful acts committed by Participants including vandalism (such as dismantling barriers to create barricades, spray paint, and damage to public and private property), and violence (including directly seeing some radical Participants using bottle-based improvised incendiary weapons, as further noted in paragraph 8.7).

HKNLOG strongly opposes criminal damage and violence. We support the exercise of peaceful rights of expression, demonstration, and freedom of speech protected by the Basic Law.

We are particularly concerned by criminal damage that affects others’ rights. For example, we have seen property damage and violence by a minority of Participants being used as a reason for Police to object to proposed public gatherings under the Public Order Ordinance.44 Damage to MTR stations has also impacted commuters wishing to exercise their rights (and obligations) to go to work.

We therefore recommend that instances of criminal damage and violence be investigated in accordance with the law. However, we would urge that:

(i) these matters be appropriately prioritised according to their relative gravity, and that as a matter of Police and prosecutorial policy, there continues to be some tolerance of things such as public street art and music that may enable members or the public to express their views safely and without unduly affecting others, given all the circumstances; and

(ii) if certain matters are in fact pursued (e.g. the removal of painted slogans by one group), that they be pursued fairly and even-handedly (i.e. the removal of painted slogans by other groups as well).

8.6 Road blocks and other barriers

(a) Our observations

We directly observed a number of instances of road blocks and barriers being established, including the following:

On 1 September 2019, during the "Airport Stress Test", we observed Participants creating road blocks and barricades from dismantled metal fences, dustbins and airport carts, causing significant traffic congestion to and from HKIA. We also observed metal sprinklers taken from next to the Airport Express thrown onto the rail tracks. We noted that all public transport to and from HKIA was cancelled and private traffic was severely affected as a result of Participants being required to walk away from the site of the public gathering.

On 15 September 2019, we observed barricades being built with dismantled fences, traffic cones, dustbins and bricks that had been dug up and scattered on the ground on Queensway in Admiralty and surrounding areas.

44 For example, as reported in relation to a public gathering proposed by CHRF for 15 September 2019 – see: https://www.scmp.com/news/hong-kong/politics/article/3027010/police-ban-rally-fear-more-violence-and-chaos-hong-kong.

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On 1 October 2019, we observed brick pavements dug up, fences being removed, large planters tipped over and dragged into the middle of Connaught Road.

We have also observed on multiple occasions certain vehicles and other items and Participants themselves obstructing the road.

(b) Key potential legal issues

These types of road blocks and barriers could be offences under the:

Summary Offences Ordinance, which includes:

(A) setting out or leaving “any matter or thing which obstructs, inconveniences or endangers [or may do so to], any person or vehicle in a public place”;45 and

(B) offences for dropping things from any building, “to the danger or injury of any person in or near a public place”, if applicable;46

Road Traffic Ordinance, which covers various unlawful actions such as interfering with traffic signs and markings (as noted in paragraph 8.5), obstructing Police in the exercise of their powers under the Ordinance,47 various traffic offences by motorists such as dangerous driving,48 and pedestrians negligently endangering their own (or others’) safety;49

the MTR By-Laws, which includes offences for trespass,50 as well as for interfering with tracks, rails, equipment, trains and other property relating to the MTR;51 and

the Crimes Ordinance.

In addition, the Road Users’ Code issued by the Transport Department may be relevant to any road-related obstructions. A failure to meet the requirements in that Code is not itself an offence, but could be taken into account in proceedings for an offence under the Road Traffic Ordinance.

Our concerns and recommendations in paragraph 8.5 also substantially apply here. We are also especially concerned about obstruction of roads and railways that could result in serious harm to members of the public.

45 Section 4A, Summary Offences Ordinance. 46 Section 4B, Summary Offences Ordinance. 47 Section 62, Road Traffic Ordinance. 48 Part 5, Road Traffic Ordinance. 49 Section 48, Road Traffic Ordinance. 50 Section 4, MTR By-Laws. 51 Section 5, MTR By-Laws.

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8.7 Setting fires

(a) Our observations

On several occasions, we observed fires being lit by more radical Participants. By way of an illustrative example, these included the following:

(i) On 1 September 2019, during the “Airport Stress Test”, we observed barricades set on fire, although we also overhead Participants discussing that fires should be set only in open areas, far from trees and residential areas.

(ii) On 28 September 2019, we observed incendiary devices (possibly “Molotov cocktails”) being thrown into the Police Headquarters in Wanchai, which involved the water cannon truck temporarily being set alight.

(iii) On 1 October 2019, we observed a barricade that had been set on fire at a road junction on Lockhart Road, Wanchai.

Generally speaking, we observed fires and incendiary devices only after most Participants had left a public gathering, and where members of the public were generally not around.

(b) Key potential legal issues

Arson falls under Section 60(3) of the Crimes Ordinance. This requires an offence committed under Section 60 by destroying or damaging property by fire to be charged as arson, which can result in imprisonment for life. 52 Other offences could also apply, depending on the precise nature of the fire, action and property concerned.

Our concerns and recommendations in paragraphs 8.5 and 8.6 also substantially apply here.

8.8 Dangerous articles

(a) Our observations

Whilst the very large majority of Participants that we have observed have been peaceful, we have observed a very small number of Participants at public gatherings carrying dangerous items. One example of this was on 1 September 2019, during the “Airport Stress Test”, when a large group of Participants were running, we observed a small number of people carrying knives running into the crowd.

Of course, other items could be considered dangerous depending on their use and other circumstances. For example, the poles and bricks described in paragraphs 8.5 and 8.6 could harm others. We also suspect the use of inflammable liquids in the fires we have seen, as noted in paragraph 8.7.

52 Section 63(1), Crimes Ordinance.

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(b) Key potential legal issues

Carriage of dangerous, or potentially dangerous, items can fall under various legislation. Examples include the following.

(i) The Dangerous Goods Ordinance significantly restricts the carriage and use (amongst other things) of “dangerous goods”, which include the following:

“all explosives, compressed gases, petroleum and other substances giving off inflammable vapours, substances giving off poisonous gas or vapour, corrosive substances, substances which become dangerous by interaction with water or air, substances liable to spontaneous combustion or of a readily combustible nature, radioactive material and…such substances to which it is applied by the Chief Executive in Council under section 5”.53

This would be of most potential relevance to the incendiary devices we have observed during our Observations.

(ii) The Weapons Ordinance prohibits various weapons, including the following:54

“Any knife the blade of which is exposed by a spring or other mechanical or electric device

Any bladed or pointed weapon designed to be used in a fashion whereby the handle is held in a clenched fist and the blade or point protrudes between the fingers of the fist”.

This may apply to the knives we saw on 1 September 2019, depending on their precise nature and operation (for example, a basic kitchen knife may not be covered under this Ordinance).

(iii) The Public Order Ordinance:

(A) makes it an offence to possess an “offensive weapon” in a public place without lawful authority or reasonable excuse. 55 The term “offensive weapon” is very broadly defined, to include:

“any article made, or adapted for use, or suitable, for causing injury to the person, or intended by the person having it in his possession or under his control for such use by him or by some other person;”56 and

(B) contains a further offence for possessing offensive weapons at public meetings and processions.57

(iv) The Crimes Ordinance prohibits the use of a dangerous item which involves any threat or actual harm.

53 Section 3, Dangerous Goods Ordinance. Note this does not apply to such goods carried in the ships of war of the Chinese People’s Liberation Army or any foreign state, nor to any dangerous goods in the possession and control of the State. 54 The Weapons Ordinance also covers other weapons, such as martial weapons as defined in Section 2. 55 Section 33, Public Order Ordinance. 56 Section 2, Public Order Ordinance. 57 Section 17C, Public Order Ordinance.

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Our concerns and recommendations in paragraphs 8.5 and 8.6 also substantially apply here. We do not endorse, and wholeheartedly recommend against, the use or carriage of any dangerous items during public gatherings.

At the same time, we believe it is important for the Police to exercise due circumspection in their interpretation of broad statutory terms such as “offensive weapon”. In this respect, we note the extensive media coverage of issues relating to laser pointers, including valid questions as to whether or not these truly should be interpreted as such.58

8.9 Mistreatment of National Flag59

(a) Our observations

We have observed acts involving disrespect for the National Flag. These include the following:

(i) On 17 August 2019 at the “pro-Police” rally at Tamar Park, our Observers witnessed piles of banners and flags, including the National Flag, discarded. Several of these piles appeared to have been trampled on. Our Observers did not observe whether the flags were discarded and/or trampled intentionally and wilfully as a sign of disrespect, but given the context, it appears unlikely this was done in a malicious manner. That is, it was apparent that the flags had been discarded deliberately and were subsequently trampled on, but we did not identify any evidence to indicate that it was done in a wilful attempt to desecrate the flags.

(ii) On 1 October 2019, HKNLOG Observers saw several Participants carrying and waving flags which have become colloquially known as the “Chinazi” flag. This is not the National Flag or Regional Flag. It is a red flag with a large Swastika constituted of yellow stars. We understand that the intent is to link the People’s Republic of China with the Nazi regime of 1933 to 1945, in a derogatory manner.

We are also aware of reports of other persons arrested and charged in connection with offences relating to the National Flag.60 We raise this here in light of our recommendations below.

(b) Key potential legal issues

Pursuant to Section 7 of the National Flag Ordinance, it is a criminal offence to "desecrate" the National Flag or the National Emblem "by publicly and wilfully burning, mutilating, scrawling on, defiling or trampling on it". The maximum penalty for desecrating the National Flag or National Emblem is a fine at Level 5 (HKD50,000) or imprisonment of 3 years.61 Section 7 of the Regional Flag Ordinance contains a similar provision in respect of the Regional Flag.

"Defiling" has been defined to include "dishonouring".62 The Court of Final Appeal has not been required to determine whether trampling on the National Flag without a specific intention to desecrate it is an offence under Section 7 of the National Flag Ordinance.

58 See, for example, https://www.scmp.com/news/hong-kong/politics/article/3021897/laser-pointers-are-spotlight-hong-kongs- protests-and. 59 We are also aware of the creation of various other flags, and variations upon the National Flag and Regional Flag. We may cover these in a separate report. 60 See, for example, https://www.scmp.com/news/hong-kong/law-and-crime/article/3030191/hong-kong-man-charged-publicly- mutilating-chinese. 61 Section 7, National Flag Ordinance. 62 HKSAR v Ng Kung Siu and Another [1999] 3 HKLRD 907 (CFA), at 919F.

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Unintentional trampling on the National Flag would likely not constitute an offence as it would not include desecrating by "wilfully… trampling". However, deliberate and intentional trampling on the National Flag (or Regional Flag) may constitute an offence.

Section 7 of the National Flag Ordinance has been held to be constitutional under the Basic Law.63

We also note that copies and near-copies of the National Flag are also covered by the National Flag Ordinance,64 although we highly doubt that the “Chinazi” flag we have seen would be deemed to so closely resemble the National Flag “as to lead to the belief that the copy in question is [that] flag” under the Ordinance. We are aware of a suggestion that this flag may constitute a breach of Section 4 of the National Flag Ordinance, which prohibits the use of a damaged, defiled, faded or substandard National Flag,65 but this would need to be more fully analysed.

We support respect for the National Flag, National Emblem, Regional Flag and Regional Emblem, as they are representative elements of the “One Country, Two Systems” principle in the Basic Law.

We note that to date it appears that there have only been cases opened or charges laid in cases involving anti-establishment persons being arrested and charged in connection with National Flag offences. Caution must be exercised to ensure that any suspected offences against the National Flag must be fully investigated and prosecutions carried out regardless of the identity of the persons involved. The effective application of the rule of law requires laws to be applied equally to all persons regardless of their political affiliations or leanings.

8.10 Waste generally

(a) Our observations

We have also observed general litter and waste throughout our Observations. This includes discarded placards, flags, items used for barricades, and general rubbish. This has been most pronounced where waste facilities were insufficient, or where public gatherings escalated into significant property damage by more radical Participants.

On the other hand, we have also observed a number of Participants assisting with cleaning and waste disposal after the public gatherings.

(b) Key potential legal issues

Various legislation applies to public cleanliness and waste. Fixed penalties apply to certain types of offences specified in the Fixed Penalty (Public Cleanliness and Obstruction) Ordinance (Cap. 570 of the Laws of Hong Kong). Of most potential relevance to this Report are those set out as follows:

Legislation Breach Fixed penalty

Public Health Ordinance Display of bills or posters without permission HKD1,500

Public Cleanliness Regulation Depositing of litter or waste in public places HKD1,500

63 HKSAR v Ng Kung Siu, affirmed by the CFA in October 2014 in HKSAR v Koo Sze Yiu and Another (2014) 17 HKCFAR 396. 64 Section 8, National Flag Ordinance. 65 See http://paper.wenweipo.com/2019/09/01/HK1909010014.htm.

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Legislation Breach Fixed penalty

Summary Offences Ordinance Obstruction of public place HKD1,500

Marine littering HKD1,500

Waste Disposal Ordinance Unlawful depositing of waste HKD1,500

We urge all Participants to respect public spaces and minimise the impact of public gatherings on general members of the public, and on cleaning staff and others (such as certain Police officers and other emergency services staff) who are tasked with disposing of potentially dangerous articles. Please also see our recommendations in relation to appropriate waste disposal of sensitive items in paragraph 8.18.

B Police

8.11 General observations of Police

The Police play a crucial role in the administration of justice and the rule of law in Hong Kong. The Police also carry important statutory roles, including with respect to public gatherings under the Public Order Ordinance. The Police have therefore been at the coalface of the situation in Hong Kong during the Report Period and beyond.

More concretely, we have directly observed Police undertaking important activities such as:

(a) monitoring public gatherings;

(b) assisting with crowd control;

(d) closely assessing the approach to handling challenging scenarios, such as the presence of more violent Participants; and

(e) clearing streets following a public gathering.

Besides these functions, during the Report Period, HKNLOG Observers directly observed Police actions that ranged from passively monitoring Participants from a distance to heavy engagement by means of force. Police used a range of crowd dispersal techniques including using weapons (e.g. kinetic impact projectiles such as bean bag rounds), chemical irritants (in particular, tear gas) and water cannons). In general, the use of these dispersal techniques increased in frequency and intensity towards the end of the Report Period. HKNLOG Observers observed the attitude and activities of Police towards Participants and non-Participants as ranging from neutral to hostile.

As is the case for Participants, we believe from our observations that the majority of Police wish to support Hong Kong and the rights of Hong Kong residents under the law.

At the same time, we also feel it is important to flag matters of concern. The following paragraphs provide further details.

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8.12 Lack of presence in certain cases

At Observation 2, we noticed there was very limited Police presence in the streets around the public gathering for which the No Objection Letter had been granted. HKNLOG Observers observed no Police from Fortress Hill MTR Station, through Wanchai, Admiralty and Chater Garden in Central, until Sheung Wan where HKNLOG Observers saw Police vans and Police assembling in riot gear from around 19:00. Due to the lack of Police presence, there was no formal control of the crowd at the public gathering or traffic in nearby streets along the planned route from Causeway Bay to Chater Garden in Central. This may have caused potential dangers to peaceful Participants.

This was in contrast to Observation 1 on the day before, at a “pro-Police” rally at Tamar Park, which appeared to us to have crowd control support throughout the day.

At the same time, we are concerned that we frequently heard at public gatherings throughout the Report Period, words to the effect that “things are fine until the Police arrive”, from multiple parties. We do not believe this generalisation to be true at all times, and there is inevitably a degree of correlation rather than causation, but it does concern us that there is a level of mistrust amongst Participants, and that a more routine Police presence earlier during public gatherings (in non-riot gear) did not seem to be occurring during the Report Period.

8.13 Non-identification / masking by Police

(a) Our observations

During our 10 observations during the Report Period (and many others separate to that), there were very few instances where HKNLOG Observers saw Police wearing identification at all and/or in a manner that was visible to the public. For example, during our Observation on 1 October 2019, the Police were seen stopping people from passing a Police line at North Point, behind which we saw or heard arrests were taking place. However, none of the officers were seen to be wearing identification numbers.

We are also aware of numerous press reports to this effect, as well as potential Court challenges.66 We have also observed the use of very bright lights by Police, which we understand may be intended to interfere with photography.67

At the same time, we understand that there are challenges in play to the privacy and safety of Police officers, as noted in the report of our Observations and analysis of doxxing issues in paragraph 9.1.

(b) Key potential legal issues

Police officers are held to a high standard, in line with their statutory and regulatory obligations, including through the chain of command.

The PGO generally requires uniformed Police officers to produce their warrant cards upon request by members of the public unless:

(i) circumstances do not allow;

(ii) to do so would prejudice the Police action and/or safety of the Police officer(s) concerned; or

66 See footnote 33. 67 See https://www.washingtonpost.com/world/2019/08/01/hong-kong-protesters-are-using-lasers-distract-confuse-police-are- pointing-them-right-back/.

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(iii) the request is unreasonable.68 `

A Police officer plain dealing with members of the public and exercising their powers must also identify themselves and produce their warrant card, and a Police officer in plain clothes at the scene of a crime must wear their warrant card in such a manner that they are easily identifiable.69

Police officers are also protected by privacy law and the significant protective actions undertaken by the Privacy Commissioner, as described in paragraph 9.1. This has involved criminal investigations into those who have breached privacy protections.

The Police must comply, and be seen to comply, with the law and the chain of command. This includes complying with all identification rules.

We are extremely concerned about:

(i) clear and persistent refusal by a vast number of Police officers to identify themselves, not even by using code numbers that might be known only to senior Police officials;

(ii) the resultant potential impunity for misconduct, particularly in light of the power and discretion available to Police; and

(iii) the other consequences that flow from non-identification. For example, we have observed Participants question why they should abide by the law if the Police do not do so. Obviously this question does not run the other way, given the status of the Police.

In relation to Police masking their faces, this is less concerning if identification numbers are shown. However, we would urge the Police to reconsider masking when the situation is not tense. For example, HKNLOG Members have observed members of the Police in full riot outfits and black face coverings on days, at times and in circumstances that seemed unnecessary. This can instil significant and unnecessary fear in members of the public, including young children.

We also recommend transparency as to the Police rules on identification, to avoid misunderstanding by the community.

8.14 Engagement with Participants and HKNLOG Observers generally

(a) Our observations

In relation to Participants

During Observations 3, 6, 8 and 10, we observed a degree of intimidation by Police of Participants. Police were also heard to use generally abusive language towards Participants, such as “cockroaches”, as well as other phrases such as “送你入新屋嶺，慢熳雞姦，慢慢玩，死臭閪, 死返屋企產卵, 記你老毌, 找耶穌打鳩你呀, 死老鬼，棺材等緊,

68 Chapter 20-14(4), PGO. 69 Chapter 20-14(2), PGO.

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闔家剷, 屌你老母, 打撚死你,掉你落街, 姦撚左妳,掉妳落海, 死臭雞, 要六四重演, 開槍打曱甴頭.”70

More specifically, during our Observation on 8 September 2019, we observed a member of the riot Police asking a (peaceful) Participant at a lawful gathering to “come over” and claiming that he would “take off his gear”.

In relation to HKNLOG Observers

Generally speaking, during the Report Period HKNLOG Observers have been treated in a neutral and passive manner by the Police, in the sense that we have not been questioned, required to leave any public gathering or otherwise targeted. We have been allowed to stand close to Police lines, as well as observe arrests in reasonably close proximity.

We have seen other non-Participants such as members of the press, first aid groups and others also treated in a similar way, subject to our comments below. In this connection, we have been distinguished from general members of the public – for example during our Observation on 15 September 2019, HKNLOG Observers were generally treated with the same status as the press. The Police asked a member of the public to leave from near the Police frontline, but allowed all uniformed groups including ours to remain.

However, during our Observation on 8 September 2019, we attempted to observe a stop and search outside Hong Kong Park on Cotton Tree Drive at 14:45. HKNLOG Observers were approximately 5 meters away from an incident where two young males were being searched by 14 Police officers. HKNLOG Observers were asked to move back to 20 meters away from the incident and were told we were obstructing the Police in the execution of their duties. We were not able to observe the process of the search as our view was blocked entirely by a bus stop. During our Observation on 1 October 2019, a Police line was observed at North Point blocking access to Fortress Hill MTR station. HKNLOG Observers were informed by Police that they were conducting searches and no person, including us and press, were allowed to observe.

During another part of our Observation on 1 October 2019, an HKNLOG Observer was stopped and searched by a group of approximately 12 Police in anti-riot uniforms at the junction of Kennedy Road and Queen’s Road East at 18:06. The relevant HKNLOG Observer was not informed of the reason for being searched. Other passers-by were also searched before being allowed to proceed to Queen’s Road East. The Police officers conducting the stop and search were observed to be talking in a hostile tone which then mellowed once the relevant HKNLOG Observer made her identity and purpose of visiting the area known. The stop and search lasted less than two minutes and the relevant HKNLOG Observer was then allowed to proceed unhindered.

(b) Key potential legal issues

Participants, HKNLOG Observers and others must comply with the lawful directions of the Police and otherwise comply with applicable law.

However, intimidation and harassment outside the boundaries of Police powers can be problematic and unlawful. In this respect, please refer to our comments in paragraph 8.4(b). We also expect this would be a serious disciplinary issue.

Please also refer to paragraph 8.15 in relation to stop and search powers and observations.

70 These are derogatory terms in Cantonese. We do not translate them for the purposes of this Report, given its scope, as well as the nuance of meaning inherent within many of these terms.

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We acknowledge the roles and responsibilities of the Police and the concomitant duties of Participants, observers and others, including HKNLOG Observers. We are also very grateful for those officers who exercise their duties responsibly and respectfully of others.

However, we are very concerned about:

(i) the overall degradation in behaviour by certain members of the Police, including the use of abusive language; and

(ii) harassment of Participants, observers and others lawfully exercising their rights and obligations.

This only serves to sow further division in the Hong Kong community and allows certain more radical Participants to justify their own behaviour.

We urge the Police to ensure that standards of conduct are rigorously enforced, that there be an appropriate “tone from the top” and that all complaints be investigated and resolved appropriately, with disciplinary action taken as needed.

8.15 Stop and search

(a) Our observations

We have observed multiple “stop and search” operations by Police, including those noted in paragraph 8.14.

(b) Key potential legal issues

General Police powers

The PFO contains a number of provisions setting out the Police powers of arrest, detention, search and treatment of offenders. The provisions are not comprehensive and are supplemented by the common law.

Acting in a suspicious manner - Under Section 54(1) of the PFO, it is lawful for a Police officer to stop a person who is “acting in a suspicious manner”. “Suspicious manner” is determined according to the subjective assessment of the Police officer, and must be genuine.

Reasonable suspicion of an offence – Under Section 54(2) of the PFO, it is lawful for a Police officer to stop a person whom they “reasonably suspect of having committed, or being about to commit, or intending to commit, an offence”

Both sections apply to a person in any street or other public place, or on board any vessel, or in any conveyance, at any hour of the day or night who acts in a suspicious manner and empower the Police officer to:

(A) demand the person to provide proof of their identity for inspection;

(B) if they consider necessary, search the person for anything that may present a danger to the Police officer; and

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(C) detain the person for a reasonable period to conduct the search and to inquire whether or not the person is suspected of having committed any offence at any time.

The power to seize items under Section 50(6) of the PFO is restricted to those items which the officer reasonably suspects to be of value in the investigation of an offence committed by that person. A Police officer ordering a search must have reasons for doing so and reasonable grounds for apprehending the suspect must persist at that time.71

Additional powers related to public gatherings

Under Section 33(6) of the Public Order Ordinance, if the Police reasonably believes an unlawful assembly or riot has occurred/is occurring/may occur, and offensive weapons have been or may be used during such an offence: then the Police may stop and search any person in a public place within the vicinity to ascertain whether or not that person is guilty of such offence.

It is important to note that one may refuse to cooperate if the Police provides no proper legal basis to do the act concerned, as in those circumstances they are not acting in due execution of their duties. However, it is possible that refusal may constitute an offence to assault, resist or deliberately obstruct the Police in the execution of their lawful duties.72 A common practice in these situations is for a person to cooperate, but it may be useful to carefully record down the circumstances of the search, so that the issue of whether the search was lawful may be raised through proper channels or at trial, if necessary.

Manner of conducting body searches

The Police have a wide discretion to conduct searches in public areas (e.g. if they suspect the person may have weapons on them). However, body searches can only be conducted by a Police officer of the same sex. If there are none nearby, the person should be brought to the nearest Police station. In addition, the Police should try to conduct the search in a more private place if the situation permits. The person concerned may request to carry out the search at the nearest Police station.

Rules also apply to custody searches conducted on a detained person prior to the detention in a Police detention facility (cells/temporary holding areas) and house searches. The Police may also enter and search any premises:

(i) with a warrant;

(ii) without a warrant, where there is reason to believe a person to be arrested is inside the premises;73 or

(iii) with the consent of the occupant/landlord.

71 R v Chan Sai-leong [1989] 2 HKLR 385. 72 See Section 63, PFO and Section 36, Offences Against the Person Ordinance. 73 Section 50(3), PFO.

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Digital contents of a phone found

An arrested person has no legal obligation to unlock their phone. The Police have no power to examine the phone except:

(i) with a warrant; or

(ii) in exigent circumstances where there is a reasonable basis to suspect a search may prevent an imminent threat to safety of the public or Police officers, prevent imminent loss or destruction of evidence or lead to the discovery of evidence in extremely urgent and vulnerable situations.

Incidences of stop and search and arrests are widespread and some of these appear to be based on profiling and certain factors (for example, age and clothing) rather than individuals acting in a suspicious manner as required by Section 54 of the PFO.

8.16 Arrest

(a) Our observations

We have observed a number of arrests at our Observations, although we have generally not been able to determine the precise reasons. Please also refer to our comments in paragraph 8.17 in relation to arrests we have observed and the use of force.

(b) Key potential legal issues

General principles regarding arrest

Article 28 of the Basic Law provides that no Hong Kong resident shall be subjected to arbitrary or unlawful arrest, detention or imprisonment. Arbitrary or unlawful search of the body of any resident or deprivation or restriction of the freedom of the person shall be prohibited. Torture of any resident or arbitrary or unlawful deprivation of the life of any resident shall be prohibited.

Specific Hong Kong rules

The PFO contains a number of provisions setting out the Police powers of arrest, detention, search and treatment of offenders. These provisions are not comprehensive and are supplemented by the common law.

In general, an arrest is constituted by a physical seizure or touching of the arrested person’s body, with a view to his/her detention.

Section 50(1) of the PFO, which is the main arrest provision for Police officers, does not use the word arrest at all save in the marginal note. The section states that a Police officer may “apprehend” certain persons. Any person may arrest without warrant any person whom he may reasonably suspect of being guilty of an arrestable offence.

More specifically, an officer effecting an arrest must have reasonable belief the person arrested will be charged with an offence or reasonably suspect they are guilty of an offence. The test as to whether reasonable grounds for the suspicion to justify an arrest exist is partly subjective, in that the arresting officer must have formed a genuine suspicion that the person being arrested was guilty of an offence, and partly objective, in that there had to be reasonable grounds for forming such a suspicion.

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Related rights

Under Section 5(2) of the Bills of Rights Ordinance, anyone who is arrested shall be informed, at the time of arrest, of the reasons for their arrest and must be promptly informed of any charges against them.

Following arrest:

(i) anything said under caution upon arrest may be tendered as evidence in Court;

(ii) under Article 5(3) of the Bill of Rights Ordinance:

“It shall not be the general rule that persons awaiting trial shall be detained in custody but release may be subject to guarantees to appear for trial.”

(iii) under Section 52(1) of the PFO, any person apprehended must be discharged on Police bail or brought before a Magistrate so far as is practicable within 48 hours of their apprehension if custody or conditional bail is required.

In general, the following rights are paramount:

the right to silence;

the right to legal representation;

the right to understand their basic rights (Pol. 153);

the right to be given a copy of any admissions/confessions/statements made;

the right to medical treatment, refreshment and rest periods;

the right of refusal to take part in any identification parade (but note that the suspect may then be subjected to dock identification at trial); and

the right to inform their family or friends that they are in custody and or present with the Police and under investigation.

Arrests are being made in Hong Kong at a significant rate. This only emphasises the need for vigilance in procedures being followed and appropriate disciplinary actions being taken when they are not.

In particular, arrest procedures must be followed and the use of force and treatment in custody must be appropriate. Arrests must also be fair, in the sense that they do not favour one group over another, or adopt unreasonable grounds. Furthermore, the threat of arrest should not be used when members of the public or Participants are merely slow to respond or who are merely upset by the situation. Vulnerable persons should also be given due latitude when responding to Police instructions.

Please also refer to our comments in paragraph 8.17 about the use of force and paragraph 10.4 in relation to treatment in custody.

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8.17 Use of force and dispersal tactics generally

Please also refer to paragraphs 8.18 (tear gas and chemical irritants), 8.19 (water cannons) and 10.3 (kinetic impact projectiles).

(a) Our observations

We observed the Police using force and various dispersal tactics at most of our Observations. This included, for example:

(i) using a number of crowd control techniques, including the use of loudspeakers with instructions, as well as barriers and personnel to direct Participants. This was common throughout our Observations; and

(ii) using a degree of force to subdue and arrest Participants.

On some occasions, it was not clear why the force was required. For example, during Observation 3, around Paterson Street in Causeway Bay at approximately 7:30pm, two relatively young and lean men (most likely in their early 20s) were set up on, surrounded, and arrested by approximately 4 or 5 heavily armed riot Police in two distinct arrests. In each case, the arrested persons did not appear to be armed and were pinned to the ground and then surrounded by more officers who formed a cordon around the arrested individuals, which made it difficult for reporters or supporters on the ground to see what they were doing, although the arrested persons were later able to shout out their names and other details.74 Such heavy use of force would need to be justified (against clearly published procedural guidelines as to when force should be used) and subject to proper scrutiny after its use). HKNLOG Observers did not observe any weapons or obvious danger to the Police or the public, raising a question as to whether or not this degree of force was appropriate. We do not know the full circumstances, and stress these must be taken into account; and

(iii) adopting more serious dispersal and arrest strategies, including by utilising its Special Tactical Squads known as “raptors” and other anti-riot Police, multiple Police vans, “Unimog” armoured anti-riot cars, and (as noted in paragraphs 8.18 and 8.19) water cannons, tear gas and other chemical irritants.

This paragraph 8.17 focuses on the general use of force and crowd control techniques. From this perspective, we noticed a large number of Police officers being deployed for certain arrests, as well as a strong degree of aggression and verbal abuse on certain occasions when Police were engaging with Participants who were behaving peacefully, that we believe exceeded what was necessary in the circumstances and served to antagonise. Some examples have been provided in paragraph 8.14.

Furthermore, we are aware of significant other reports regarding the use of force in the course of their duties. During the Report Period, there were many widely publicised incidences of the alleged unlawful uses of force, one of the most serious being on 1 October 2019 when a Police officer shot a teenager in the chest at a public gathering after a group of Participants attacked another officer with a PVC pipe.75 During the Report Period, internet users have logged and documented more than 100 incidences of the alleged unlawful use of force by the Police on the website https://www.hkpfreport.org/.

74 This is generally to enable family members and friends to make inquiries, and to facilitate legal representation. 75 See, for example, https://www.reuters.com/article/us-hongkong-protests-police/hong-kong-police-change-guidelines-on-use-of- force-in-protests-documents-idUSKBN1WI0TX

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While we have not separately verified these reports, we note that they appear to be several and significant.

(b) Key potential legal issues

The use of force by Police to arrest a suspect or to stop unlawful activities is subject to the law and Police conduct rules. The law bestows the Police with special powers and tools to perform their duties. It follows that the improper or indiscriminate use of force is a serious challenge to the rule of law and also undermines public support for the Police, thereby affecting confidence in two of our most important institutions.

The issue then is the manner and extent of the force used to effect the arrest and whether it is reasonable (i.e. necessary and proportionate) in the circumstances. For this reason, HKNLOG is not in a position to determine whether individual instances of the use of force are lawful or not. However, we are very concerned by what we have observed and seen in a significant number of reports.

The following paragraphs provide further details about the key legal principles regarding the use of force. These and other relevant rules would need to be carefully examined in respect of any allegation of excessive force.

General principles

Articles 28 and 39 of the Basic Law and Section 8, Articles 2 and 3 of the Bill of Rights Ordinance provide that every Hong Kong resident has the inherent right to life; this right shall be protected by law; no one shall be arbitrarily deprived of his life; and no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. These rights are absolute and cannot be restricted under any circumstances. Article 2(3) of the Convention Against Torture, to which Hong Kong is a signatory, further provides that an order from a superior officer or a public authority may not be invoked as a justification of torture.

The use of force and firearms in cases of incident control have the potential to infringe on the right to life or may amount to torture or other forms of ill-treatment.

Specific requirements

Pursuant to Section 101A of the Criminal Procedure Ordinance (Cap. 221 of the Laws of Hong Kong), a person may use such force as is reasonable in the circumstances in the prevention of crime or in effecting or assisting in the lawful arrests of offenders or suspected offenders or of persons unlawfully at large. This principle replaces the rules of the common law on the same subject.

What is reasonable force depends on the individual facts and circumstances of each case, but that there are some guiding principles that Police follow and rules relating to public gatherings, described below. We also note that the Security Bureau provided the following answer to the Legislative Council on 23 January 2019 regarding the Police’s approach to the use of force:

“The Police have established guidelines on the use of force. Police officers will use minimum force as appropriate only when it is absolutely necessary and there are no other means to accomplish the lawful duty. Police officers will give verbal warning prior to the use of force as far as circumstances permit, while the person(s) being warned will be given every opportunity, whenever practicable, to obey police

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orders before force is used. Once that purpose is achieved, the Police will cease to use force.”76

The Police’s internal guidelines are not available to the public, and we do not know if they have been amended during the current period of social unrest although media reporting suggests they may have been amended prior to 1 October 2019.77

In a public gathering context

In crowd control situations, the Police rely upon general powers under Section 17 of the Public Order Ordinance, which provides that any Police officer of or above the rank of inspector may disperse any public gathering if he reasonably believes that the gathering is likely to cause or lead to a breach of the peace and may give or issue such orders as he may consider necessary or expedient and may use such force as may be reasonably necessary to so disperse. Section 45 of the Public Order Ordinance reiterates that any Police officer may use such force as may be necessary to prevent the commission or continuance of any offence under the Public Order Ordinance, to arrest, and to overcome any resistance to the exercise of any of the powers conferred by the Public Order Ordinance.

Section 46(1) of the Public Order Ordinance sets out the restrictions on the use of force and provides that the degree of force that may be so used shall not be greater than is reasonably necessary for that purpose. Section 46(3) of the Public Order Ordinance confers immunity on the Police by providing that any person who uses such force as may be necessary for any purpose, in accordance with the provisions of the Public Order Ordinance, shall not be liable in any criminal or civil proceeding for having, by the use of such force, caused injury or death to any person or damage to or loss of any property. Thus the immunity will not apply where the reasonable necessity test cannot be met.

In HKSAR v Chu Frankly [2018] HKCFI 2072 and [2019] HKCFA 5, the Courts have confirmed that a Police officer has to satisfy a two-stage test:

Whether the defendant (a Police officer) honestly believed that the circumstances were such as required him to use such force, even though the belief may have been mistaken; and

Whether the force used was reasonable in the circumstances as he believed them to be.

If the Police officer does not even begin to show that they had used such force as may be necessary, the question of the reasonableness of the degree used is not reached.

It is also noted that under Section 22(1) of the Firearms and Ammunition Ordinance (Cap. 238 of the Laws of Hong Kong), it is an offence to discharge or otherwise deal with any arms or ammunition in a manner likely to injure, or endanger the safety of, any person or property or with reckless disregard for the safety of others, without lawful authority or reasonable excuse. The defence turns on the issue of whether the Police had used necessary and reasonable force, to which the same test above would apply.

In this regard, the guidelines and policies that the Police have adopted governing their use of weapons in the public protest context (although not available to the public) are relevant to this assessment. Beyond these guidelines, the principle of proportionality may also be

76 https://www.info.gov.hk/gia/general/201901/23/P2019012300454.htm 77 See footnote 80.

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relevant which will require the Police to opt for the least intrusive and most proportional force in the circumstances to achieve the legitimate policing objective.

Professor Simon Young of the University of Hong Kong has summarised the Government’s official response regarding the Police’s use of tear gas against Participants and derived the following list of factors relevant to assessing whether use was reasonably necessary:

(A) Whether only the minimum level of force used.

(B) Were sufficiently clear warnings given on each occasion?

(D) What was achieved by the means?

(E) Were less intrusive means reasonably available to achieve the same ends?

(F) Did a senior officer, who was present at the time, authorise each use?78

These factors are also generally applicable to an assessment of whether the force used by the Police with other weapons is reasonably necessary.

We understand from press reports on the subject79 that guidance on the use of force may have changed in around late September 2019 from press reports on the subject, 80 providing a strong degree of latitude to Police officers. As that guidance is not publicly available, it is not known if it meets the requirements of reasonable necessity explained above.

Using weapons

As described above, it is an offence to discharge or otherwise deal with any arms or ammunition in a manner likely to injure, or endanger the safety of, any person or property or with reckless disregard for the safety of others, without lawful authority or reasonable excuse. Given that the Police’s legitimate objective is to disperse the crowds and to prevent the commission or continuance of any offence under the Public Order Ordinance (i.e. not only unlawful assembly), to arrest, and to overcome any resistance to the exercise of any of the powers conferred by Public Order Ordinance, weapons may be used by the Police subject to certain restrictions.

Using hand thrown projectiles

Hand thrown grenades or weapon launched projectiles (as opposed to small hand-held pepper sprays) have an indiscriminate effect with a high probability of affecting not only those individuals who are engaged in violence, but also bystanders and peaceful Participants.

78 http://researchblog.law.hku.hk/2014/09/legal-authority-for-police-to-use-tear.html. 79 See https://www.reuters.com/article/us-hongkong-protests-police/hong-kong-police-change-guidelines-on-use-of-force-in- protests-documents-idUSKBN1WI0TX. 80 See https://www.reuters.com/article/us-hongkong-protests-police/hong-kong-police-change-guidelines-on-use-of-force-in- protests-documents-idUSKBN1WI0TX.

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Other items

Please refer to paragraphs 10.3 (in relation to kinetic projectiles) 8.18 (in relation to tear gas and other chemical irritants) and 8.19 (in relation to water cannons).

Oath of office

Finally, all citizens are expected to obey the law, and members of the Police are not exempt from this duty. Indeed, they are subject to additional duties arising from their office. When a person takes the oath on admission as a member of the Police, he or she must make the following as an oath or a declaration:

"I, __NAME__, swear by Almighty God/do solemnly and sincerely declare that I will well and faithfully serve the Government of the Hong Kong Special Administrative Region according to law as a police officer, that I will obey uphold and maintain the laws of the Hong Kong Special Administrative Region, that I will execute the powers and duties of my office honestly, faithfully and diligently without fear of or favour to any person and with malice or ill-will toward none, and that I will obey without question all lawful orders of those set in authority over me."81

Police officers have a legal and moral duty to act in accordance with this oath given that all oaths and declarations must be made solemnly and sincerely under Hong Kong law.82 Therefore, all Police officers have an additional moral and legal duty to act in accordance with their oaths of office.

Any unlawful or unjustified use of force by the Police is a serious threat to the rule of law and by extension, law and order in Hong Kong. It is crucial that the Police justify and be held to account for its use of force each and every time.

We therefore recommend the following:

Increased transparency: the Police should clarify through published guidelines, when and what steps it is taking to ensure that force is used reasonably and only as an option of last resort. Any force used must also be proportionate to the threat. Given the gravity of the issue, the power this entails and the large numbers of persons this affects, there must be appropriate level of transparency, stakeholder engagement, scrutiny and regular review regarding these requirements. Such public rules also ensure mutual trust and respect, and removes ambiguity and fear arising from what might otherwise appear to be unfettered Police discretion.

Identification of officers: the Government must ensure that all Police officers (save those who are undercover) are clearly and individually identifiable by displaying their identification numbers.

81 Section 26, Schedule I of the PFO: 82 Chief Executive of the Hong Kong Special Administrative Region Secretary of Justice v The President of the Legislative Council [2016] HKCA 573; [2017] 1 HKLRD 460; [2016] 6 HKC 541; CACV 224/2016 (30 November 2016)

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Accountability: All use of force resulting in injury and all instances of the use of lethal force must be subject to proper and full inquiry internally and by a properly resourced, independent body with sufficient regulatory powers to thoroughly investigate any suspected transgressions, and the officers involved must be placed on leave pending the outcome of the investigation. This also means that when a Police officer is found to have engaged in the unlawful use of force they must be prosecuted promptly.

We also strongly recommend reconsidering dispersal tactics, to ensure the approach in each scenario could be more attuned to the circumstances and take into account the impact on innocent civilians (including vulnerable groups), animals and properties.

This will require a holistic approach to public observations, starting from ensuring more gatherings are approved and using non-riot Police to engage with the organisers and Participants, using physical cordons and loudspeakers rather than using large groups of riot Police, multiple Police vans and tear gas as the first approach. This also allows peaceful Participants and members of the public an opportunity to leave or take precautions such as protecting children, closing air vents etc. Adequate warnings are essential.

The following paragraphs 8.18 and 8.19 delve into more specific dispersal techniques.

8.18 Use of tear gas and other chemical irritants

(a) Our observations

We directly observed a significant number of instances where Police deployed tear gas, including the following:

During Observations 7, 8, 9 and 10, Police used teargas and/or pepper spray extensively throughout the public gatherings. HKNLOG Observers were told Police had raised the black banner forewarning tear gas would be deployed. Whilst HKNLOG Observers who were physically present at the public gatherings area observed that Police do often raise a black banner before deployment of tear gas, there have still been multiple occasions where HKNLOG Observers have not been able to see the black banner raised before tear gas canisters were fired.

Specifically, during Observation 10, teargas was used extensively throughout the gathering. Police were observed firing teargas canisters down into the crowd below from their position on the Queensway flyover. At the time, crowds were streaming in both directions down Queens Road East / Hennessy Road and Queensway towards Tamar Street as well as Participants who had completed the route and were heading back along Queensway towards Wanchai. After the initial round of tear gas, all the crowds had dispersed including on the overpass. Nevertheless, the Police continued to fire multiple rounds of teargas and threatened to use force to clear the overpass even though at that time only reporters and HKNLOG Observers were on the overpass.

We believe the Police could have resorted to other means to achieve their purpose. Such use of tear gas did not appear to us reasonably necessary or proportionate. We were in fact puzzled by its use, particularly as those on the street (including our Observers) were all (as far as our Observers could see) clearly marked in bright fluorescent vests at a distance at which Police officers could see us.

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During Observations 7 and 9, Police were also observed to deploy tear gas to generally clear roads and paths despite there being no or very few people: (i) at the location generally; and/or (ii) identifiable as Participants. Apart from crowd dispersal, the extensive deployment of tear gas seemed to be used to generally clear sections of roads around Police lines to assist Police advancement to reinforce policing efforts in other locations. On at least one occasion, Police were directly observed to aim the tear gas towards the press.

On one occasion, Police raised the black banner forewarning tear gas would be deployed and fired teargas canisters almost immediately after (i.e. within seconds not minutes). In this particular example, innocent bystanders including a cyclist were seriously affected by tear gas without any ability to prevent or protect against this. This example was in an area (around Admiralty Station) that was quiet and peaceful at the time, so simply advising citizens to stay away from problematic areas is not enough. (We also observed several Participants assisted the cyclist.)

The significant use of tear gas and other chemical irritants such as pepper spray has also been reported in multiple media channels throughout the Report Period. In relation to pepper spray, we have observed (and been affected) by this or a similar chemical in connection with water cannon use (see also paragraph 8.19). We are also aware of its regular use in close proximity on individual Participants and members of the public. Our HKNLOG Members also regularly see Police officers carrying it around Hong Kong.

(b) Key potential legal issues

Chemical irritants, including tear gas, temporarily deter an individual by producing sensory irritation of the eyes and upper respiratory tract which disappears within a short time following the exposure has stopped.

The analysis for use of chemical irritants are as follows:

The wide-area use of chemical irritants has an indiscriminate effect (or people and animals) and therefore should only be used when the Police cannot contain the threat by directly targeting violent persons only.

Clear warnings should be used prior to use so that people can have sufficient time to leave. The sudden use of tear gas (i.e. without adequate warning or where insufficient time was allowed for a crowd to leave following a warning) is less likely to be reasonable.

If there are no clear acts of violence or rioting shortly prior to its deployment, which would suggest that the use of the tear gas in such a situation would be excessive and unnecessary.

Throwing tear gas canisters directly at Participants or firing of canisters directly at Participants is unlikely to be the minimum level of force required, necessary or considered as reasonable.

Deploying tear gas in confined spaces such as in MTR stations or where exit ways are blocked, narrow, or restricted is unlikely to be reasonable because it is contrary to its intended purpose as a crowd dispersal tool.

Generalised use and/or use without considering contextual factors (e.g. in or around elderly centres or schools in the surrounding areas), so that many peaceful Participants and other members of the public are affected would be disproportionate and is less likely to be reasonable.

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In general, we have seen multiple uses of tear gas during our Observations that did not appear to us reasonably necessary or proportionate, and in fact seemed to breach international principles on the subject by either targeting non-Participants or wilfully ignoring that only non-Participants would be almost exclusively affected.

Furthermore, the following dispersal techniques used by the Police give rise to concern:

Tear gas not exclusively being used for the purposes of crowd control, as evidenced by its use even where this obviously would not achieve that purpose. In particular, indiscriminately affecting peaceful Participants, passers-by and other members of the public or press where there are no ongoing observable acts of violence or rioting is regrettable and can give rise to avoidable community animosity to the Police.

Failing to give clear and adequate warning prior to deploying dispersal techniques, which means that members of the public and others have no ability to protect themselves.

Using chemical irritants as apparent weapons, rather than dispersal techniques.

Police guidelines for use not being available to the general public, which may cause misunderstanding for the general public.

Use of expired tear gas, and from unverified sources or origins.

Ultimately, tear gas and other chemical irritants should be reserved to the most exceptional circumstances, where no other plausible options are possible. Consideration should also be given to potential long-term impacts on health83 and environmental consequences.84

The Police should also ensure that the tear gas canisters are appropriately disposed of, and that members of the public are aware that they cannot collect them. There also needs to be transparency of the documented effects of all chemical irritants to ensure its use takes into account public safety and long/short term health effects.

83 There are conflicting views about this. For example, there have been various skin conditions and other symptoms reported by press, Participants and members of the public. However, we are also aware that adverse health impacts have been denied to some degree. See, for example, the discussion in this article: https://www.hongkongfp.com/2019/10/25/greenpeace-questions- hong-kong-police-claim-blue-dye-water-cannon-harmless/. 84 For example, some environmental organisations such as Greenpeace have questioned the claim that blue dye from a water cannon is harmless. See https://www.hongkongfp.com/2019/10/25/greenpeace-questions-hong-kong-police-claim-blue-dye- water-cannon-harmless/.

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8.19 Deployment of water cannons

(a) Our observations

We directly observed a number of instances where Police used water cannons, including the following:

During Observations 8 and 10, water cannons were observed being used extensively throughout the public gatherings, at times in coordination with other Police vehicles. The solution used in the water cannon included both clear water and/or blue solution. The blue solution is believed to contain pepper spray (or similar), as our HKNLOG Observers who were observing on the sidelines were affected by a burning sensation when a small amount of blue solution reached their arms. In addition, they observed a member of the press whose eyes were covered in blue solution and was in significant pain, but whose pain subsided when their eyes were rinsed with water solution.

During Observation 8 at 20:41 outside the Government Headquarters by the Connaught Road flyover, a water cannon was observed to be used to target individuals on the overpass (many of whom had opened their umbrellas).

In each case, warning announcements were made regarding the deployment of the water cannons. However, the warnings did not clearly indicate that persons observing from above the Government Headquarters (including significant numbers of press) would also be affected, nor that pepper spray (or some other irritant) would be present in the water.

(b) Key potential legal issues

A water cannon can be free-standing, vehicle mounted, building mounted or on a backpack. It is a high-pressure pumping system designed to shoot jets of water at people. The pressure of the jet is adjustable. The jet can deliver marker dye and/or chemical irritants.

A high pressure can inflict a blunt trauma pushing back a person or knocking him/her to the ground. The water can have additives including marker dye (for later identification of persons) or a range of chemical irritants for additional effects.

The analysis for use of chemical irritants are as follows:

The effects of water cannons are indiscriminate and can cause serious injuries either by a direct hit, or indirectly if items fly up as a result of the jet or if the Participants fall on the ground and sustain injuries.

The guideline for use in Hong Kong has not been made available to the public but published criteria in the United Kingdom state that water cannons are to be used: (a) when conventional methods of policing have been tried and failed or because of the circumstances are unlikely to succeed if tried; (b) in situations of serious public disorder, where there is the potential for loss of life, serious injury, or widespread destruction and whether such action is likely to reduce that risk; and (c) only be used by trained officers.

Whether the use is reasonably necessary would depend not only on the violence of the Participants but also on the pressure of the jet and the presence or absence of use of chemical irritants.

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We do not dispute that there may be times when the use of water cannons is appropriate, and indeed preferable, to more serious and life-threatening dispersal tactics.

However, the use of water cannons, particularly in narrow, crowded streets and neighbourhoods, is of major concern and increases the likelihood of harm and possible fatalities as an unintended consequence of their use. Our key recommendation in respect of the use of water cannons is that their use should be minimised. However, if they are to be used, our recommendation to minimise the likelihood of harm is substantially the same as those relating to the use of force and general dispersal tactics in paragraph 8.17 and the use of tear gas and other chemical irritants in 8.18.

In particular, we strongly believe that transparency of the guidelines for use of water cannons should be prioritised, that widespread deployment of water cannon should be reconsidered, and that careful consideration should be given to the possible consequences for uninvolved members of the public. We also recommend the Police permit post-use scrutiny of the decision to use water cannons by giving public statements as to why such force had to be used and ensuring that there are appropriate channels for reviewing the appropriateness of such use.

C Journalists

The freedom of the press is a crucial element in our system of checks and balances, and therefore the right of journalists to question, criticise, and hold those in power to account is a critical to the rule of law. In this section, we raise a few matters of concern and interest in relation to journalists, arising from our experience Observations. However, there are many other related issues concerning press freedom that could be also raised and which may be covered in greater depth in future reports. We also understand that the Hong Kong Journalists Association is proactively and regularly publishing statements on matters of concern,85 which should be taken into account when examining matters relating to press freedom.

8.20 Press freedom and identification

We have had the opportunity to interact with many journalists during our Observations. Overall, we have been observed their continued professionalism and tireless efforts of those present at public gatherings, as well as their eagerness to understand the events and persons involved fully. Most appear to be well-researched and well-prepared. Many have come from overseas to witness events first-hand, rather than relying on other sources alone.

Journalists play a pivotal role in Hong Kong, as recognised in multiple legislation, guidelines and codes of practice. These include, critically:

(a) Article 27 of the Basic Law, which enshrines the freedom of the press; and

(b) Chapter 39 of the PGO, which contains specific obligations for Police officers, including facilitating the work of news media, according media representatives consideration and courtesy, and not blocking camera lenses.86

It is uncontroversial that press freedom must be protected. It is fundamental to proper accountability in a free and fair society. Encroachments on press freedom also have the potential

85 See https://www.hkja.org.hk. 86 Section 39-05, PGO.

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to threaten Hong Kong’s international status and free press rankings, which have already suffered and have declined to 61st globally.87

In relation to identification, journalists must carry their usual personal proof of identity and produce it for inspection when asked, as applies to any person in Hong Kong under the Immigration Ordinance.

However, there is no legal requirement in Hong Kong for a journalist to hold or to produce press identification. Although there are several media organisations that provide press identification for their workers, not all of them carry these. However, we understand that Police have nonetheless asked journalists to produce press identification.

Some of this misunderstanding may arise from the definition in Chapter 39 of the PGO of “Media Representative” referring to those with specified credentials, but which do not apply to all members of the press. We recommend this be closely reviewed by the Police, in consultation with journalists and the Hong Kong Journalists Association.

8.21 Balanced and accurate reporting

Given the importance that the press plays in our system of governance as well as the role they have the rule of law, it is equally important that journalists act in accordance with their professional standards and that their reporting be balanced and accurate at all times. We believe that by ensuring journalists continue to have public respect and trust, this will only add to their effectiveness as one of the guardians of the rule of law.

Therefore, it is crucial that all published press be factually accurate and provide the necessary context where possible. The selection of content should also be free from bias and sensationalism. While we understand that on-the-ground reporting does not generally have the luxury of comprehensive contextual analysis and research, full use of the opportunity for correction or clarification after the event should be utilised so as to ensure that the public and the record is as accurate as possible. We also appreciate that news editors have discretion as to how they select and position stories. However, we believe some review and rebalancing would be merited to ensure ongoing faith in the press, and that equal time and space be devoted to different views and opinions, as well as issuing corrections as a matter of course when errors are identified.

Every effort should also be made to distinguish the content of on-the-ground reporting as to whether this is factual reporting, editorial content or only a personal perspective. If this delineation is executed well, this positively benefits the public and the personal freedom of expression by individual journalists.

87 World Economic Forum, The Global Competitiveness Report 2019, available at http://www3.weforum.org/docs/WEF_TheGlobalCompetitivenessReport2019.pdf. See also https://www.hongkongfp.com/2019/10/19/hong-kongs-top-competitiveness-rankings-cost-poor-livability-labour-rights/.

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D Frontline volunteers

(a) Our observations

We observed multiple first aiders, observers, church pastors, pro bono lawyers and other frontline volunteers at public gatherings. Based on our experience, their presence appeared to be due to genuine humanitarian concern to ensure the safety of Participants. For example:

(i) “Protect the Children” group members were regularly viewed on scene, on occasion acting as intermediaries between Police and Participants to help de- escalate the situation and assist in finding a way forward;

(ii) we also met members of the Human Rights Observer and Civil Rights Observer teams at certain public gatherings; and

(iii) first aiders were almost always available in near proximity, with a generally accepted call sign of two arms crossed above the head when first aid support was required. We also understand from discussions at our 17 August 2019 Observation that the St John’s Ambulance and Red Cross teams aimed to alternate their presence at public gatherings, at least at that time.

(b) Key potential legal issues

We understand that as with HKNLOG, there is no legal impediment to such volunteers being available at public gatherings, although they are subject to the general law, including the duty not to obstruct the lawful exercise of Police activities.

At the same time, we understand that there may have been circumstances where this was not well understood (and volunteers were in fact arrested)88 or when certain volunteers such as first aiders or lawyers were not provided access to support Participants when needed to enable them to receive medical support89 or legal representation, respectively.

Police procedures expressly recognise the importance of medical support. For example, Section 27-02 of the PGO requires, amongst other things, that Police officers:

“not delay the administering of medical aid or the conveyance of a victim by ambulance to a hospital or clinic.” 90

Ambulance crew must be allowed to take victims immediately for treatment,91 and the Police may not tell an ambulance crew to wait at the scene – for example, to await the arrival of a forensic pathologist.92

Please also refer to paragraph 8.16 in relation to arrest, and paragraph 10.4 in relation to treatment in custody, including as to legal representation.

88 For example, it was reported that in the public gathering at Yuen Long on 21 September 2019, a member of the Protect our Children group was beaten by Police officers in a nearby alley after he had been arrested on Fung Yau St. N., Yuen Long (RTHK, 23 September 2019). 89 For example, at the Prince Edward MTR Station on 31 August 2019, as alleged by various parties – see http://www.thestandard.com.hk/breaking-news.php?id=133975&sid=4, https://www.hongkongfp.com/2019/09/22/831-prince- edward-mtr-incident-proves-hong-kong-urgently-needs-access-information-reform/ and https://www.scmp.com/news/hong- kong/politics/article/3026184/no-protesters-killed-during-police-actions-hong-kong. 90 Paragraphs 1 and 3, Section 27-02, PGO. 91 Paragraph 2, Section 27-02, PGO. 92 Paragraph 4, Section 27-02, PGO.

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Emergency treatment by frontline medics, as well as urgent treatment at a nearby medical facility (where required), must be made available irrespective of the identity and status of the injured person.

In relation to pro bono and other lawyers, the Basic Law rights in Article 35 in relation to legal representation, judicial adjudication and related procedures must be respected. In particular, no action should be taken or avoided, that would prevent a person from being able to obtain legal representation. This includes not hampering arrested persons from displaying their identity and providing their identification details to surrounding persons to enable them to do so, and ensuring that legal counsel have appropriate access to their clients.

9 OTHER OBSERVATIONS (DIGITAL SOURCES)

This section refers to certain materials HKNLOG Members have sourced from third parties, primarily through digital-only sources. Save for official Government or Court sources, we have not undertaken any steps to verify these materials and expressly disclaim the authenticity of the material relied on. Any views or opinions in materials reproduced do not reflect our own. These are included solely for the purposes of discussion of potential legal issues.

9.1 "Doxxing" / privacy breaches

(a) Our observations

We have observed photographs of individuals posted on social media, together with other information, such as identification numbers and telephone numbers, in a context that suggested that this was intended to expose the identified individuals to potential harassment. In certain cases, the individuals appeared (from the inclusion of uniforms or otherwise) to be Police officers. In other cases, children were involved. We are also aware of an alleged doxxing website targeting pro-democracy figures called “HK Leaks”.93

(b) Key potential legal issues

The term “doxxing” is generally used to refer to someone disclosing or using personal data with a malicious intent and without consent. It can involve harassment, denigration, disclosure of real-world identities, framing, impersonation and trickery.

Doxxing may involve:

breaching Hong Kong’s privacy laws, which can carry various penalties;

a criminal element (e.g. criminal intimidation); and/or

a civil wrong (e.g. harassment or defamation).

Given it often occurs online, doxxing can also involve cyber-crime, including accessing a computer with criminal or dishonest intent.

The following paragraphs describe the key principles in further detail. As with any alleged crime, the specific circumstances of each incident are important, as the mere disclosure of personal data is not always illegal.

93 See https://www.hongkongfp.com/2019/11/01/bulletproof-china-backed-doxxing-site-attacks-hong-kongs-democracy-activists/.

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Privacy law considerations

Underpinning principles

Individual privacy is protected under various legal grounds in Hong Kong.

▪ The Basic Law enshrines the freedom and privacy of communication of Hong Kong residents (subject to lawful public security or investigative needs),94 as well as the privacy of Hong Kong residents’ homes and other premises (subject to lawful search)95 and confidential legal advice.96

▪ The Bill of Rights Ordinance codifies the right to legal protection against arbitrary or unlawful interference with a person’s privacy, family, home or correspondence, as well as unlawful attacks on honour and reputation.97

▪ The PDPO is the key operative legislation that protects personal data privacy. This is the main focus on this section, and is described in further detail below.

▪ More broadly, confidentiality obligations arise in various contexts, including as a matter of general law, contract etc. A limited right to privacy has also been recognised in case law.98

We focus on the PDPO given its relevance to our observations. However, this does not imply that other principles are not also relevant.

Overview of Hong Kong’s privacy law

The PDPO protects “personal data”, being any data:

▪ relating directly or indirectly to a living individual;

▪ from which it is practicable for the identity of the individual to be directly or indirectly ascertained; and

▪ in a form in which access to or processing of the data is practicable.99

It is generally accepted that individuals’ names, identity card numbers, addresses, photographs and other forms storing biometric information (such as fingerprints) constitute “personal data”.100 Whether or not other data such as email addresses are “personal data” depends on the facts.

The PDPO sets out six core “data protection principles” (“DPP”) in Schedule 1, which apply to “data users”.101 They relate to the following:

DPP 1 – Purpose and manner of collection of personal data

94 Article 30, Basic Law. 95 Article 29, Basic Law. 96 Article 35, Basic Law. 97 Article 14, Bill of Rights Ordinance. 98 See Democratic Party v The Secretary of Justice (HCAL 84/2006) and Yues Sha Sha v Tse Chi Pa [1999] HKC 731. 99 Section 4, PDPO. 100 See Chapter 2 of Data Protection Principles in the Personal Data (Privacy) Ordinance – from the Privacy Commissioner’s perspective (2nd Edition), available at https://www.pcpd.org.hk/english/publications/files/Perspective_2nd.pdf. 101 A “data user” is defined in section 2 of the PDPO as “a person who, either alone or jointly or in common with other persons, controls the collection, holding, processing or use of the [personal] data”.

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DPP 2 – Accuracy and duration of retention of personal data

DPP 3 – Use of personal data

DPP 4 – Security of personal data

DPP 5 – Information to be generally available

DPP 6 – Access to personal data

Compliance with the DPPs is a central requirement of the PDPO. 102 A failure to do so – for example, by:

▪ collecting personal data in an unlawful or unfair manner (such as collecting excessive personal data, or data that is not directly related to a function or activity of the relevant data user), in breach of DPP 1;

▪ using personal data without appropriate disclosure and/or consent, in breach of DPP 1 and/or DPP 3; or

▪ not safeguarding personal data from unauthorised or accidental access, in breach of DPP 4,

can result in an investigation and enforcement notice, failure to comply with which can result in various penalties including fines and imprisonment.103 There can also be a direct right of action by an aggrieved individual, including for injury to feelings.104

Importantly, PDPO rights are not absolute. There are various exemptions from certain DPPs, such as for safeguarding Hong Kong’s security, defence or international relations; 105 the prevention / detection of crime; apprehension, prosecution or detention of offenders etc;106 and for emergency situations (such as rescue, relief, life-threatening situations).107 However, the details of these exemptions should be examined carefully before relying upon them.

Section 64 offences

In addition to the DPPs, there are particularly strong penalties under Section 64 of the PDPO where a person discloses personal data obtained from a data user without the data user’s consent, and:

▪ with an intent to obtain gain in money or other property, whether for the benefit of the person or another person, or to cause loss in money or other property to the data subject; or

▪ the disclosure causes psychological harm to the data subject.

There are very limited exceptions to this, being where:

102 Part 6A, PDPO. 103 See Part 7, PDPO. 104 Part 66, PDPO. 105 Section 57, PDPO. 106 Section 58, PDPO. 107 Section 63C, PDPO.

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▪ the person reasonably believed that the disclosure was necessary for the purpose of preventing or detecting crime;

▪ the disclosure was required or authorised by or under any enactment, by any rule of law or by an order of a court;

▪ the person reasonably believed that the data user had consented to the disclosure; or

▪ the person disclosed the personal data for the purpose of a news activity108 or a directly related activity and had reasonable grounds to believe that the publishing or broadcasting of the personal data was in the public interest.

Penalties can include a fine of up to HKD1,000,000 and imprisonment for up to 5 years.

Recent actions and statements by the Privacy Commissioner

The Privacy Commissioner has been vocal about the protection of personal data and alleged doxxing incidents, demonstrating that it is an area of enforcement focus.

More specifically, as at the date of its Media Statement on 21 October 2019,109 the Privacy Commissioner has:

▪ issued 24 media statements regarding doxxing and related issues, with the first issued on 14 June 2019;

▪ requested online platform operators to provide information of certain “netizens” who may have posted suspected infringing content, and to remove 1,632 weblinks;

▪ referred 1,297 cases to the Police for further criminal investigation and for consideration for prosecution; and

▪ taken various other related actions.

The Media Statement on 28 September 2019 110 also referred to proposed amendments to the PDPO that would enable the Privacy Commissioner to:

“apply to the court for an injunction when necessary to require the relevant social media platforms or websites to remove and stop uploading “doxxing” contents/posts; undertake criminal investigations and make prosecutions for criminal offences; and impose administrative fines directly on offenders to enhance deterrence and protection of privacy.”

In sum, such amendments would strengthen the enforcement capability of the Privacy Commissioner (a regulator focussed on personal data protection) and

108 Defined by Section 61(3) of the PDPO to be “any journalistic activity and includes: (a) the (i) gathering of news; (ii) preparation or compiling of articles or programmes concerning news; or (iii) observations on news or current affairs, for the purpose of dissemination to the public; or (b) the dissemination to the public of: (i) any article or programme of or concerning news; or (ii) observations on news or current affairs.” 109 Available at https://www.pcpd.org.hk/english/news_events/media_statements/press_20191021.html. 110 Available at https://www.pcpd.org.hk/english/news_events/media_statements/press_20190928.html.

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reduce reliance on traditional prosecutorial processes, and thereby potentially speed up protection of personal data from doxxing incidents.

Intimidation and harassment

Doxxing can involve intimidation and harassment, which can themselves be unlawful. In this respect, please refer to our comments in paragraph 8.4(b).

Defamation

Doxxing can also involve defamation. As a starting point, the freedom of speech in Hong Kong under Article 27 of the Basic Law is important but not absolute. It is subject to regulation by the law of defamation. Victims of defamation have the right to have access to the courts under Article 35 of the Basic Law.

Participants who feel that they have been defamed by any publication of any kind, whether in print or online, oral or in writing, may consider commencing civil defamation proceedings against the wrongdoers under the Defamation Ordinance.

A statement is defamatory if it tends to injure the reputation of someone, such as lack of qualification, knowledge, skill, capacity, judgment or efficiency in the conduct of one’s trade, business or professional activity. The test is:

what do the words complained of mean (i.e. the imputations); and

whether such imputations are defamatory (i.e. tend to damage the aggrieved person’s reputation).

A defamatory statement is presumed to be false, and it is for the defendant to plead and prove that the statement is true.

For example, the words “Participant A is only protesting because they have been funded by the CIA” is potentially defamatory as it suggests that:

Participant A does not genuinely believe in the cause of the protest;

they are protesting only because they have been paid; and

they are disingenuous and/or dishonest.

Such a defamatory statement is presumed by the law to be false, in favour of the aggrieved person. It is up to the accused to come up with proof that what they had published is true.

Proceedings would have to be started in the District Court or the Court of First Instance of the High Court of Hong Kong, as the Small Claims Tribunal has no jurisdiction over defamation claims. Participants who would like to take legal action should seek independent legal advice.

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Cyber-crime: access to computer with criminal or dishonest intent

Doxxing regularly takes place online. As a result, it may also be a cyber-crime under Hong Kong law. In particular, offences that take place over the internet can trigger Section 161 of the Crimes Ordinance, in addition to other substantive offences.

This provision makes it an offence for anyone to obtain access to a computer:

with intent to commit an offence;

with a dishonest intent to deceive;

with a view to dishonest gain for themselves or another person;

with a dishonest intent to cause loss to another person; or

whether on the same occasion as they obtain such access or on any future occasion. The offence can carry a penalty of imprisonment for up to 5 years.

For the purposes of this offence:

it is not necessary for the gain or loss to be in money or other property, and could extend to any gain or loss which is either temporary or permanent;

gain includes keeping what the person already has, as well as getting what they do not already have;

loss includes not getting what the person might get, as well as parting with what they have.

However, simply using one’s own device is not enough to trigger the offence. Specifically, the Court of Appeal has confirmed in a recent case that this provision “does not apply to the use by a person of [their] own computer, not involving access to another’s computer”.111

It is also relevant to note that this case involved a desktop computer and smart phones, but it was not in question that these were all “computers” for the purposes of section 161. The prosecution also conceded that the desktop computer (belonging to an employer) could be treated as one of the defendant’s own computers, on the basis that she had full authority to use it and could also use it for private purposes. However, the Court noted this would not necessarily serve as a precedent for future cases involving the use of an employer’s device.112

At least one prosecution under this provision has been launched during the Report Period. Specifically, the South China Morning Post reported on 25 September 2019 that an individual telecommunications worker has been charged with “one count of obtaining access to a computer with a view to dishonest gain, and a second count of conspiracy to disclose personal data obtained without consent.”113 As reported, the accused is alleged to have accessed a company computer to access and disclose a customer’s personal data, including their telephone number and Hong Kong Identity Card number, as well as conspiring with another to disclose such data without consent. However, it appears no plea has been entered yet, and the accused was conditionally released on bail until the next hearing on 20 November 2019.

111 Justice v Cheng Ka Yee [2019] HKEC 1046 at 48. 112 Id at 33. 113 https://www.scmp.com/news/hong-kong/law-and-crime/article/3030369/first-person-charged-over-hong-kong-protests-denies.

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We support the strong stance taken by the Privacy Commissioner in addressing doxxing as an issue and proactively taking the steps we have described in this section. We also support initiatives to consider further strengthening enforcement of Hong Kong’s privacy laws.

However, at a more fundamental level, we urge that all stakeholders, including Police, Participants, politicians and members of the public, call for privacy laws to be respected. Criminal doxxing should continue to be appropriately investigated fairly and impartially no matter the affiliation of the person affected. The identity of children and minors must be especially protected. Part IV – Other reported matters

In this Part IV, we raise certain other matters that we have seen alleged, but not necessarily directly observed in our capacity as Observers. These must be treated with due circumspection, given the myriad risks relating to second-hand reports and unverified materials. We raise them only as an opportunity to raise awareness about potential legal and regulatory issues.

10 POLICE-RELATED MATTERS

10.1 Fake Police

(a) Key reports

There have been reports of people impersonating Police officers in Hong Kong in connection with public gatherings – for example, allegedly calling Hong Kong residents derogatory names for the purposes of tarnishing the image of Police.114

(b) Potential legal issues

Section 65 of the PFO makes it an offence to wear a Police uniform “or any dress having the appearance or bearing any of the distinctive marks of that uniform”, without the permission of the Commissioner of Police. Depending on the conduct of the person in question, other offences could apply, such as intimidation and/or fraud.

Any allegation of impersonation should be fully investigated, given the breadth of powers granted to Police and the potential for harm to the public by fraud of that nature.

We also strongly recommend that Police officers always identify themselves, as described in paragraph 8.13. This enables members of the public to guard against fraudsters and avoid placing themselves in harm’s way – for example, if they are asked to accompany the person for questioning or even placed under “arrest”.

114 For example, as shown in this video and related commentary: https://www.youtube.com/watch?v=V50aN1mHUq8.

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10.2 Use of undercover Police officers

(a) Key reports

The Police have confirmed the use of undercover Police officers during the Report Period.115

(b) Potential legal issues

Undercover policing has long been recognised in Hong Kong as an operational need for the Police.

In determining whether undercover policing is appropriate, a Court would be concerned to ensure that the undercover Police officer did not act as an agent provocateur in a way which affected the trial procedures. The issue would be whether the target was deprived of a fair trial. It was held in HKSAR v Chan Kau Tai [2006] 1 HKLRD 400 that the Court has a discretionary power to exclude evidence obtained as a result of breach of the rights to a fair trial, depending on a balancing exercise of factors including the nature of the right involved and the extent of breach.

Another issue more central to the recent allegations of the use of undercover Police officers during public gatherings is whether a Police officer who participated in a criminal activity during an undercover investigation might be prosecuted. There are rare instances where the undercover Police officers faced prosecution, but theoretically they could be prosecuted.

According to paragraph 1.2 of the Prosecution Code of the Department of Justice, the decision whether or not to prosecute should only be taken after a prosecutor has fully evaluated the evidence and circumstances, and the following questions have been answered:

Whether there is evidence sufficient to justify instituting or continuing proceedings?

If the first question is answered in the affirmative, does the public interest require a prosecution to be pursued? A prosecutor must not be influenced by the possible political effect on the government and the political or other opinion, social origin, social or political affiliation, official or other position in the community or any other personal characteristics of the accused.

In R v Yip Chiu-cheung [1994] 2 HKCLR 35, one of the issues was whether the jury had been correctly directed to regard the undercover agent as a co-conspirator if they found the undercover agent intended to export the relevant heroin. The Judicial Committee of the Privy Council stated that there is no place for a general defence of superior orders or of Crown or executive fiat in Hong Kong law, and the fact that the undercover agent was not prosecuted did not mean that he did not commit the crime, albeit as part of a wider scheme to combat drug trafficking.

In other words, there is no statutory immunity granted to the undercover Police officers, nor is the public authority defence available to them in Hong Kong.

However, there may be a question as to whether an undercover officer who participated in criminal activity possessed the necessary intention to commit a specific crime such there may be no criminal liability. This is also important in distinguishing between general and

115 For example, as reported in this article: https://www.scmp.com/news/hong-kong/politics/article/3022457/elite-police-raptor-squad- went-undercover-target-radical. The use of undercover Police has also been reported in international press, such as https://www.nytimes.com/2019/09/22/world/hong-kong-police-protests.html.

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specific intent crimes (e.g. in respect of an offence of criminal damage, an undercover officer who only pretends to do criminal damage will lack any such specific intent).

We do not dispute the important role that undercover Police officers may have to play in uncovering criminal enterprise.

At the same time, we recommend the cautious use of undercover Police officers, particularly in light of the significant tension and mistrust between Police and many Participants, and the issues we have identified generally in relation to identification in paragraph 8.13, which appear to us to have exacerbated these issues. For the protection of the rule of law, it is important that any undercover officers must also comply with obligations relating to procedure, the use of force, and respect of legal rights etc, with any alleged breach handled appropriately.

We also recommend considering whether any enhancements could be made to make clearer the requirements applicable to undercover operations and related investigations, to foster better understanding and trust amongst the public.

10.3 Use of kinetic impact projectiles

(a) Key reports

Kinetic impact projectiles such as bean bag rounds have been widely reported during the Report Period, with increasing frequency. These include at both short range and at a distance.116

(b) Key potential legal issues

Kinetic impact projectiles come in different shapes, sizes and materials, including rubber bullets, bean-bag rounds and live rounds. They may be used to stop individuals engaged in violence against persons. They can cause serious injury when hitting the head or upper torso. Random shots carry considerable risks that smaller persons or people bending down (e.g. in order to assist other people) will be struck, and their purpose in crowd dispersal can be questioned.

Police guidelines for use are not available. However, we would expect at least the following points to be taken into consideration, together with other international principles:

The use of kinetic impact projectiles should generally not be reasonably necessary unless the Police aimed specifically at individuals engaged in violence.

If kinetic impact projectiles are used, they should generally only be aimed at the lower part of the body except in exceptional life-threatening situations to the particular member of the Police.

Firing off the ground may make the projectiles inaccurate which may increase the risk of hitting the wrong persons or causing serious injury.

116 See, for example, https://www.scmp.com/news/hong-kong/law-and-crime/article/3022189/what-are-weapons-hong-kong-police- use-anti-government.

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Targeting at auxiliary personnel (such as first-aiders) is unreasonable and does not achieve any legitimate objective. It could be a defence for the Police if the court finds that they honestly believe the auxiliary personnel are Participants engaged in violence.

Kinetic impact projectiles may not always be non-lethal. Our concerns and recommendations in respect of kinetic impact projectiles are primarily that Police should only when they are genuinely necessary. Alternatively, if they are to be used, then our recommendations to minimise the likelihood of harm are substantially the same as those relating to the use of force and general dispersal tactics in paragraph 8.17 and the use of tear gas and other chemical irritants in 8.18, as applicable.

10.4 Treatment in custody

(a) Key reports

Various press reports and social media posts during the Report Period have raised potential issues relating to the treatment of arrestees in custody.117

Whilst we have not observed questioning and treatment of persons in custody in the capacity of HKNLOG Observers, individual HKNLOG Members, as members of the legal profession, have first-hand encounters of the following incidences whilst trying to discharge their professional duties for clients:

Intimidation by Police against Participants.

Excessive use of force, for example being punched and slapped as well as having a laser-pointer pen pointed at private parts and eyes whilst in custody and during questioning.

Muffling of Participants during arrest so they are unable to call out their names and HKID numbers.

Refusal or delay in allowing access to legal representation – for example, lawyers having to locate arrested Participants by going station to station instead of being informed where a client has been held, and arrested Participants having asked numerous times to see legal representation, but to no avail or only after extended and unjustified delays.

117 See, for example, https://www.hongkongfp.com/2019/08/15/arrested-protesters-accuse-police-ill-treatment-detention-denial- access-lawyers/ and https://www.scmp.com/news/hong-kong/law-and-crime/article/3030709/why-hong-kong-police-stopped- sending-anti-government.

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(b) Key potential legal issues

It is beyond the scope of this report to examine each of the allegations, which are highly fact-sensitive. However, we believe it may be useful to raise awareness of certain principles that relate to custody, given the potential implications of breach.

In particular, we note the following:

Delivery into custody – Section 51 of the PFO requires any person taken into custody with or without a warrant, to be delivered into the custody of the officer in charge of the relevant Police station, or to a Police officer appropriately authorised by the Police Commissioner.

Exceptions – There are some key exceptions to the custody rule, which are where a person is detained only for the purpose of taking their name and residence, or where they are detained under section 54 of the PFO, during a “reasonable” period for determining whether not they are suspected of having committed an offence, and/or to conduct a search considered necessary by the Police officer.

Biometrics – There are broad powers and controls under sections 59 to 59I of the PFO in relation to taking photographs, fingerprints, palm prints, weight / height information and (in certain cases) sole prints and toe prints. Intimate samples may also be taken subject to more stringent protections. Various controls including disposal of samples and records and the retention of data apply, and section 59G of the PFO governs the maintenance of a DNA database.

Police conduct generally – The treatment of persons in Police custody is dealt with by the PGO. Whilst the PGO does not have the force of law, Police officers who breach them may face disciplinary proceedings.

Custody standards – Chapter 49 of the PGO relates to “Persons in Police Custody” (“PGO Custody Standards”). The PGO Custody Standards detail a significant range of procedures and protections relating to:

▪ delivery into Police custody;

▪ period in custody;

▪ custody searches;

▪ protections for females in custody;

▪ protections for minors in custody;

▪ protections for persons with special needs;

▪ property belonging to detained persons;

▪ safety while in Police custody, including removal procedures, cell occupancy, security, protection against self-harm etc;

▪ “special watch” procedures;

▪ the use of temporary holding areas;

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▪ handing over procedures;

▪ managing sick or injured persons in custody, including ensuring hospitalisation when necessary and the use of custodial wards;

▪ interviews with persons in custody;

▪ rules relating to visits to persons in custody;

▪ medication requirements;

▪ death of persons in custody, including the need for an independent investigation; and

▪ special procedures relation certain categories of detainees, such as those detained in connection with bribery/corruption-related offences, those in possession of dangerous drugs etc.

Notices to arrestees – The Police publishes standard form notices, such as the “Notice to Persons in Police Custody or Involved in Police Enquiries”118 (“Custody Notice”) to facilitate an understanding of rights whilst in custody.

Other procedures and protections – Various other rules apply under the Police General Orders that may be relevant to arrests. These include hooding principles under PGO/FPM 43-20 “Hooding of Persons” to which the PGO Custody Standards refer, but which do not appear available publicly online.

There can be numerous and far-ranging implications from a breach of these obligations. For example, a failure to comply with these rules could render actions unlawful and may give rise to litigation against the Police. There could also be implications for Hong Kong’s compliance with international law. In any event, breaches can be severely damaging to confidence and trust in the Police, as well as perceptions of the rule of law.

Based on our observations of press and social media content:

stronger awareness across the community - there appears to be room for a stronger understanding of custody standards by the Police and general public alike. As a result, we recommend more training and awareness-building for both groups about both the rights and obligations of relevant persons whilst in custody; and

enhancing notices – reviewing the Custody Notice and other notification procedures to ensure that they:

• cover all relevant items – for example, security protections, procedures for vulnerable persons, collection of data principles; and

• are delivered in a way that arrested persons can understand. This relates to issues such as the drafting of the content, delivery style / context and language.

118 See https://www.police.gov.hk/mip/doc/pol_153e.pdf.

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practical steps to give efficacy to rules – ensuring that the rights of persons in custody can be fully exercised, and Police act in good faith in allowing them to do so. For example, we are especially concerned about the access of persons in custody to:

• medical treatment. This requires, for example, ensuring that medical professionals can gain access to injured or sick persons expediently;

• legal representation. This requires, for example, an ability for arrested persons to communicate their arrest, including but not limited to, taking such actions as removing a facial covering and/or saying their name and Hong Kong Identity Card or other number to persons in the vicinity of the arrest.

full investigation – into any relevant complaints or allegations of misconduct, with appropriate action taken as necessary in a transparent and credible process, with avenues of oversight or appeal to a body outside of the Police force itself.

11 SUSPECTED TRIAD INVOLVEMENT AND OTHER UNLAWFUL ACTS

(a) Key reports

During the Report Period, there have been numerous reports of other ad hoc unlawful behaviour, much of which has involved alleged acts of violence involving other people or groups, besides Participants and Police.

We raise them in this section solely to provide a fuller picture of the events during the Report Period, and also to help clarify certain aspects of the law.

Recordings of some of these have been circulated via social media, and many have also been reported in the press and include:

(i) assaults on Hong Kong legislators;119

(ii) assaults on individuals, not participating in a public gathering or assembly;120 and

(iii) suspected triad involvement, including allegations of collusion with the Police and commercial businesses.121

We reiterate our strong opposition to all forms of violence, as stated in paragraph 8.5, Any such violence must be fully investigated and prosecuted, in an impartial manner, without regard to political affiliation, and in particular any collusion between Police and organised criminal syndicates such as triads would be extremely worrying.

The following paragraphs focus on issues not otherwise covered by this Report.

119 For example, during the Report Period, this involved Roy Kwong in Tin Shui Wai (see https://www.scmp.com/news/hong- kong/politics/article/3030074/pro-democracy-hong-kong-lawmaker-roy-kwong-hospitalised). 120 For example, see https://www.hongkongfp.com/2019/08/20/26-year-old-hong-kong-woman-critical-condition-knife-attack-lennon- wall-tseung-kwan-o/. 121 A significant proportion of this suspicion emerged around the time of the incident at Yuen Long MTR Station on 21 July 2019, which pre-dates the Report Period (see, for example: https://www.scmp.com/news/hong-kong/law-and- crime/article/3019524/least-10-injured-baton-wielding-mob-suspected-triad). However, we are aware of ongoing reports, including, for example as noted in this article: https://www.hongkongfp.com/2019/08/21/fall-hong-kong-police-force-new-branch- chinas-public-security-machinery.

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(b) Key potential legal issues

The key Hong Kong laws that are relevant to organised groups committing unlawful activities are as follows:

(i) Triad ban - Firstly, triads are illegal. Specifically, the Societies Ordinance is the key law that regulates the establishment and activities of societies in Hong Kong. A “society” is defined broadly to include:

“any club, company, partnership or association of persons, whatever the nature or objects, to which the provisions of [the Societies Ordinance applies].”122

A society must register with the Police unless exempt, and otherwise act, in accordance with the Societies Ordinance. However, “unlawful societies” are banned, irrespective of whether they are registered or exempt from registration.

The key type of unlawful society is a “triad society”, which is defined very broadly as: “[e]very society which uses any triad ritual or which adopts or makes use of any triad title or nomenclature.”123 In turn, “triad ritual” means: “any ritual commonly used by triad societies, any ritual closely resembling any such ritual and any part of any such ritual.”124

There are significant numbers of possible offences in connection with triads and other unlawful societies, not only for members. Amongst other things, it is a criminal offence:

(A) to be an office-bearer of an unlawful society, or to manage or assist in managing one;125

(B) to be a member of a triad society or act as one,126 although it is possible to apply for a declaration to renounce membership;127

(D) for a person to knowingly allow an unlawful society to hold a meeting on premises belonging to or occupied by them, or over which they have control; 129

(E) to incite, induce or invite another person to become a member, or assist in the management, of an unlawful society; or to use any violence, threat or intimidation towards any other person in order to induce them to do so;130

(F) to procure or attempt to procure from any other person any subscription or aid for the purposes of an unlawful society.131

122 Section 2, Societies Ordinance. 123 Section 18, Societies Ordinance. 124 Section 2, Societies Ordinance. 125 Section 19, Societies Ordinance. 126 Section 20, Societies Ordinance. 127 Section 26C, Societies Ordinance. 128 Section 20, Societies Ordinance. 129 Section 21, Societies Ordinance. 130 Section 22, Societies Ordinance. 131 Section 23, Societies Ordinance.

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Penalties relating to triad societies are higher in each of these offences, reflecting the seriousness with which Hong Kong law treats them.

(ii) Organised crime – Secondly, the Organized and Serious Crimes Ordinance (Cap. 455 of the Laws of Hong Kong) applies to various types of organised crime defined in section 2, including criminal acts committed by triad societies and other acts of violence and proscribed activities committed by two or more persons.

Any related acts of violence can also trigger other substantive laws, including the Crimes Ordinance. Collusion or cooperation with criminals could also result in various other offences, such as a potential contravention of the Prevention of Bribery Ordinance (Cap. 201 of the Laws of Hong Kong) or the common law principle of misconduct in public office, depending on the facts.

Alleged breaches of the law must be investigated fully, swiftly and without regard to identity politics whether against individuals or public figures. The existence and operations of triads or other unlawful societies (or collusion with them) should be investigated and prosecuted in accordance with the law, in addition to any substantive criminal acts such as assault.

Any allegation of collusion between them and the Police must be full and properly invested by an appropriate mechanism or process that is credible, transparent, and robust, which may include proper oversight or appeals to an independent body outside of the Police force itself.

12 HOSPITALS AND MEDICAL RECORDS

(a) Key reports

Concerns have been raised in Hong Kong regarding the accessibility of health records, particularly in hospitals, and relevant procedural mechanisms. Examples include a case involving a woman hit in the eye during a public gathering on 11 August 2019, whose Queen Elizabeth Hospital records had been accessed by Police, with warrant notification procedures questioned.132

Allegations pre-dating the Report Period also include improper access by the Police to the Hospital Authority’s electronic records system, which should be appropriately investigated.133

(b) Key potential legal issues

Health records include sensitive information that is protected from inappropriate disclosure under the PDPO, to the extent it is “personal data”, and the Electronic Health Record Sharing System Ordinance (Cap. 625 of the Laws of Hong Kong) where it is stored in that system.

Privacy rights may be abrogated in certain circumstances. For example, a disclosure by a health provider may be permitted under section 58(2) of the PDPO where that use is for the purpose of preventing or detecting crime, or preventing, precluding or remedying

132 See https://www.scmp.com/news/hong-kong/law-and-crime/article/3036273/court-battle-intensifies-over-medical-records-woman. 133 See https://www.hongkongfp.com/2019/06/17/police-can-access-full-details-injured-protesters-hospital-says-medical-sector- lawmaker-following-patient-arrests/. See also "K" v. Commissioner Of Police [2019] HKCFI 2307; HCAL 2643/2019 (13 September 2019), an unofficial copy of which is at https://www.hklii.org/eng/hk/cases/hkcfi/2019/2307.html which concerns an application to access the records obtained by the Police under the warrant in order to have the warrant set aside.

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(including punishing) unlawful or seriously improper conduct, or dishonesty or malpractice, and where a failure to do so would likely prejudice that purpose.

However, exceptions generally operate to support a data user’s actions, not to enable a third party to compel disclosure. This means that a warrant is generally required for the Police or other authorities to access personal data.

We recommend that there be:

a full investigation of any complaints raised in relation to improper access of health records. A mechanism for such complaints and investigations is already available through the Privacy Commissioner;

building public awareness of the extent of privacy in relation to health records;

a review into whether notification of access requests by third parties should be strengthened, to enable appeal mechanisms to be utilised in practice;

a review into whether the interests of health care may outweigh the needs of full identification of patients by healthcare providers in certain circumstances, to ensure that individuals do not avoid critical care. If this is pursued, practical issues such as cost recovery will need to be considered. If not, the principle of data collection minimisation should be adhered to, with guidance from the Privacy Commissioner; and

all parties following proper procedures, with appropriate action being taken for any suspected breach.

13 EMPLOYEES AND THE WORKPLACE

13.1 Strikes, gatherings, health and safety

(a) Key reports

There have been numerous incidents of employment-related issues. Some of the more pertinent ones we have observed are as follows:

Issues relating to participating strikes. There have been at least two calls for general strikes with different people participating. There have been reports of employees being fired due to their participation in these strikes.134

Issues relating to participating in public gatherings; whether initiated by trade unions or otherwise.135

Issues relating to health and safety during different types of disruptions, including potential media fallout from taking action to protect staff members.136

134 See https://www.hongkongfp.com/2019/08/30/zero-tolerance-cathay-pacific-warns-staff-face-sack-join-hong-kong-strike/ and https://time.com/5668266/hong-kong-business-china-protests-economy-workforce-politics/. 135 See https://www.scmp.com/news/hong-kong/politics/article/3020850/hong-kong-bankers-join-call-citywide-strike-over-handling. 136 See https://edition.cnn.com/2019/09/04/business/zara-hong-kong-china-intl-hnk-trnd/index.html.

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Repercussions for employees participating in political related activities – whether in person or on social media (as to social media, see paragraph 13.2).137

Restrictions on the rights of civil servants to participate in political activities.138

Issues relating to those who work on the frontline. Aside from Participants, the main groups of people we have observed at events are large numbers of journalists, as well as Police, first aiders and other emergency services. Given the prolonged and continuing nature of the events observed, there has been commentary concerning health and safety concerns for both groups. 139 This includes long working hours, as well as exposure to chemical/physical danger, emotional abuse and psychological trauma from the ongoing civil unrest. However, as also noted in these reports, the nature of support provided to them by their employers can vary greatly.

(b) Key potential legal issues

We will start with the acute issues relating to frontline employees.

Health and safety

Regardless of whether employees are working on the frontline as part of their employment duties, all employers in Hong Kong have a duty to ensure the safety and health at work of all their employees generally, so far as reasonably practicable.140

The following provides some key practical examples of workplace safety issues. Importantly, they are not exhaustive and may apply across multiple types of workplaces:

(A) Working in public spaces – When working in a public space like most public gathering locations, it would probably not be reasonably practicable for employers to ensure that the location is safe as it is arguably beyond the employer’s control. However, an employer still has a duty to take reasonable steps to prevent employees from suffering injuries which are reasonably foreseeable. What is reasonable will depend on factors such as the likelihood of an accident/injury, the magnitude of the injury should an accident occur, and the cost to reduce or eliminate the risk of the injury.141

137 See: https://www.scmp.com/news/hong-kong/politics/article/3024856/cathay-pacific-urges-staff-speak-and-act-whistle-blowers and https://www.scmp.com/news/hong-kong/article/3030581/hong-kong-lawyer-quits-bnp-paribas-after-facebook-post- supporting. 138 See https://www.scmp.com/news/hong-kong/politics/article/3022897/hong-kongs-executive-officers-launch-second-petition and https://www.hongkongfp.com/2019/08/02/hong-kong-civil-servants-must-loyal-face-punishment-says-govt-ahead-protest/. 139 For example, in relation to journalists, see https://www.scmp.com/comment/opinion/article/3030888/hong-kong-protests-take-toll- mental-health-journalists-we-find-way; and in relation to Police and their families, see https://www.scmp.com/news/hong- kong/law-and-crime/article/3018557/exhausted-stressed-and-insulted-hong-kong-police. 140 Section 6, Occupational Safety and Health Ordinance (Cap. 509 of the Laws of Hong Kong), as well as the common law “duty of care”. 141 Wong Kit Chun v Wishing Long Hong [2000] HKEC 1216.

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(B) Emergency services – For the Police, press reports note the 24-hour service provided by a team of expert psychologists and other initiatives to support the psychological health of Police officers and their family members during the current operations. 142 This is consistent with psychological support services provided within Police forces globally, and in line with the government’s duty of care to Police officers under employment law. This would also apply to emergency services operated by the Government, and employers more generally.

(C) Journalists – For journalists (and other private sector employees), the availability of such support will vary widely depending on the policies of their employers. In many cases, journalists are not required to attend training or other support sessions to prepare them for the conflict and trauma situations that they will witness or to conduct post-incident briefings. For many freelance journalists who are self-employed, such services are simply unavailable. The Dart Center for Journalism & Trauma at Columbia Journalism School notes that “journalists are professional first responders to crisis and disaster. But they’re among the last of those groups to recognise the psychological implications of that responsibility”. Given this, the available research suggests that journalists who suffer from mental health issues from covering conflict situations are less likely to seek support from their employers.

However, a landmark ruling in an Australian case in February 2019 found that a media company had failed its duty of care to a journalist covering crime reporting by not taking reasonable steps to prevent the PTSD which she subsequently suffered. 143 The court found that the standard Employee Assistance Program offered by the employer was insufficient given the particular risks for the journalist, and that the company should have also implemented more comprehensive training about trauma for all its journalists, including senior managers, as well as a peer support program. In that case, the journalist was awarded damages of AUD180,000 (approximately HKD1million). However, this case appears to the first of its kind internationally and there are still very few employment cases in Hong Kong where damages have been awarded for psychological injuries.

Overtime and fatigue

The prolonged situation means that frontline employees are working extensive hours. Currently, there is no statutory entitlement to overtime pay in Hong Kong, so this solely dependent on employer policies. Police pay and benefits are governed by the Civil Service Regulations which compensates overtime through time-off (where practicable) or an overtime allowance (hourly rate = 1/175 of monthly salary). Ordinarily, overtime in the Police force is capped at 60 hours/month, although it is not clear if an exception has been granted for the current situation. In contrast, we understand that many journalists are not generally entitled to overtime compensation.144

Injury compensation:

Employees are entitled to compensation for injuries suffered “by accident” at work under the Employees’ Compensation Ordinance (Cap. 282 of the Law of Hong

142 See the second article in footnote 139. 143 YZ v The Age Company Limited [2019] VCC 148. 144 See Report of the Standard Working Hours Committee (January 2017), p168 https://www.labour.gov.hk/text_alternative/pdf/eng/swhc_report.pdf.

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Kong). This could potentially apply to some of the physical injuries which journalists are reported to have suffered when covering the public gatherings, as well as Police officers who have been injured in the clashes. This includes physical and chemical injuries (such as due to tear gas exposure etc). However, the compensation mainly only covers lost wages and medical expenses arising from the accident. It does not apply to ongoing injuries such as mental stress and psychological harm that may result from continuing exposure to the events, rather than a single “accident”. More importantly, freelance journalists who are not considered to be employees will also not be eligible for compensation under this law.

Other rights of employees

Strikes

The Employment Ordinance provides statutory protection to employees who participate in employment-related strikes or other trade-union related activities.145 However, participating in strikes for political reasons is unlikely to be covered by the statutory protection under the Employment Ordinance.

This is because a “strike” is defined as:

“the cessation of work… in consequence of a dispute, done as a means of compelling their employer… to accept or not to accept terms or conditions of or affecting employment”.146

Accordingly, participating in a strike to support the “five demands” or other political purposes is unlikely to fall within the above definition. Accordingly, if an employee is absent from work without authorisation they may be subject to disciplinary action (including suspension, pay deduction, warnings and, in the case of repeated or sustained misconduct, dismissal). Of course, an employee who is absent from work due to taking authorised leave (including annual leave under the Employment Ordinance, or other types of leave permitted under company policies) would not be considered to be “on strike” and therefore should not be subject to disciplinary action.

Employment disruptions

There are many incidents of employees having difficulty getting to work due to roadblocks and/or disputed transport services. Employers have a duty to provide and maintain a safe working environment for their employees. This duty is not just limited to the actual workplace, it also includes access to and egress from the workplace. During this time, employers may wish to consider flexible working arrangements such as allowing employees to work from home (where possible) if, as a result of the strikes, it is difficult or dangerous for its employees to attend work.

Attendance / arrests at public gatherings

There are also issues surrounding employee arrests during public gatherings. The Employment Ordinance does not provide employers with an automatic right to terminate employment if an employee is arrested or charged. This position is consistent with the presumption of innocence under Article 87 of the Basic Law.

145 Part IVA, Employment Ordinance. 146 Section 2, Trade Unions Ordinance.

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However, an employer may have a “valid reason” (as required under Section 32K of the Employment Ordinance) to dismiss an arrested employee which arises from the conduct of the employee that contributed to the arrest (for example, if such conduct causes damage to the employer’s reputation and business) or if the arrest otherwise affects the employee’s ability to do his or her job (for example, if bail is denied or restrictions are placed on an employee’s travel). We also note that the power of suspension under Section 11 of the Employment Ordinance is confined to criminal proceedings against the employee arising out of or connected with their employment. In any event, a company would retain the right to terminate contractually, including paying the employee in lieu of giving notice.

Currently, there are very limited statutory protections available to employees who have attended public gatherings either as Participants or as part of their employment (e.g. press). For members of the press, there is insufficient provision for the related issues of overtime pay and health-related compensation. For Participants, there is insufficient protection from dismissal and other disciplinary action for exercising fundamental political rights under the Basic Law which do not have a clear detriment to their employer’s business. Further, the large number of freelance or self-employed personnel, including journalists, are unlikely to have any basic protection in their engagement with their contractual payer as they are not employees.

There has been anecdotal evidence that employees have been penalised/dismissed due to their participation in a public gathering. Some of them were told directly and others may not have been informed of the reasons. We are also aware of a number of employment- related cases are pending, including unfair dismissal claims.

The level of psychological and welfare-related issues arising from related employment issues is yet to be studied on a wide level. This includes what effect doxxing, physical and online bullying, has had on employees as well as the impact of employers who have encouraged their staff to proactively report on colleagues whom they believe have attended public gatherings.

We urge all employers to carefully consider their policies and practices in relation to the health and safety of their employees and contractors. We also strongly recommend that rights established under the Basic Law are respected to the maximum extent possible.

13.2 Social media use by employees

(a) Key reports

Social media platforms have been extensively used by multiple parties throughout the Report Period, and for various purposes. This includes use by both the pro- and anti- establishment parties, as well as by journalists, academics, politicians and others.

In some instances, users have been dismissed by their employers for their social media use in connection with any political matters, or in a way that might be seen to be political. We are also aware of numerous warnings given by employers to staff against its use in this way.

Examples include the following reports:

(i) A land-crew staff member of an airline was allegedly dismissed in August 2019, with the staff member believing this was due to his activities on social media in relation to the Extradition Bill. He remarked that he had been previously warned

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by Management that he should not express any political opinions on any social media.147

(ii) In late August 2019, about 20 staff members of a television station were allegedly dismissed due to their posts on social media. The employer did not respond directly to the media’s question on whether the cause of the dismissal was the staff members’ activities on social media, although all the affected employees had previously been involved in anti-establishment posts, as well as showing part of their staff cards in supporting anti-establishment actions.148

(iii) Numerous staff members of an airline (including the head of the relevant trade union) were allegedly dismissed in August 2019. In the case of the trade union representative, she stated that she was called to a meeting at the company’s headquarters and shown numerous screen captures of her private posts on social media and asked to confirm that she was the owner of the social media account. Upon confirmation, she was then immediately told that her employment was terminated but was not provided with a reason when she asked.149

There are also alleged instances of businesses being pressured by members of the public to take action against their employees due to social media posts made in a private or personal capacity (i.e. unrelated to their job). In such situations, employers have allegedly received complaints or adverse media coverage demanding that they dismiss such employees or suffer a loss of business due to the threatened retaliatory action. In one widely reported case, a global financial firm was forced to issue a public apology for a social media post by an employee on his personal account. 150 The employee subsequently left the firm and has declined to comment, allegedly due to a confidentiality agreement with his employer.151

(b) Key potential legal issues

Similarly to our comments concerning attendances at public gatherings and political strikes, there is very limited employment protection for individuals who use social media in their personal or private capacity, due in part to the ability to contractually terminate employees with payment in lieu of notice

Arguably, employers may seek to dismiss employees where they believe the individual’s private conduct has nonetheless impacted their reputation and business. There are no decided court cases which have opined on whether the general right of dismissal should be limited in cases where such conduct is purporting to exercise a political freedom protected under the Basic Law.

Freedom of expression is enshrined in Article 27 of the Basic Law, as well as in the Bill of Rights Ordinance. There is very little Internet censorship in Hong Kong, except in the case

147 See https://hk.news.yahoo.com/%E9%80%83%E7%8A%AF%E6%A2%9D%E4%BE%8B- %E7%B9%BC%E5%9C%8B%E6%B3%B0%E7%82%92%E6%A9%9F%E5%B8%AB- %E6%B8%AF%E8%88%AA%E5%93%A1%E5%B7%A5%E7%96%91%E5%9B%A0%E7%99%BC%E8%A1%A8%E5%8F%8 D%E4%BF%AE%E4%BE%8B%E5%85%AC%E9%96%8B%E4%BF%A1%E8%A2%AB%E7%82%92-114519595.html. 148 See https://thestandnews.com/politics/%E8%98%8B%E6%9E%9C-%E7%B4%84-20-%E5%90%8D-tvb- %E5%93%A1%E5%B7%A5%E8%A2%AB%E7%82%92- %E5%9B%A0%E7%B6%B2%E4%B8%8A%E7%99%BC%E8%A1%A8%E5%8F%8D%E9%80%81%E4%B8%AD%E8%A8%8 0%E8%AB%96/. 149 See https://www.hongkongfp.com/2019/08/23/hong-kong-airline-cathay-dragon-fires-flight-attendant-union-chief-amid-pressure- china/. 150 See https://www.bnpparibas.com.hk/en/2019/09/13/statement-from-bnp-paribas-regarding-incident-involving-our-employee/. 151 See https://www.ft.com/content/5fbe4ade-df93-11e9-9743-db5a370481bc.

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of certain materials such as intellectual property infringing materials, defamatory content and obscene images.

We strongly support the ongoing respect, and practical protection, of free speech. It is critical to the rule of law and functioning of society that analysis and even criticism be permitted. Criticism of authorities can also play a fundamental role in acting as an informal check and balance on the exercise of their functions, as well as signal to Government and others which areas merit attention. We believe it is corrosive to the existence of a strong civil society if Hong Kong residents experience a “chilling effect” on their enjoyment of constitutionally protected free speech rights in their private lives due to concern of unjustified loss of their livelihoods.

At the same time, we appreciate that employers also risk potential losses to their business due to retaliatory threats received from parties who attribute (properly or improperly) an individual staff member’s personal views to that of their employer. Accordingly, we recommend that employers clearly inform and/or remind their employees about their expected standards of conduct on social media and other personal or private spheres, and limit these to situations where such conduct could genuinely impact the employer and only require what is reasonably necessary to protect the employer’s legitimate interests. Vague rules that can be interpreted widely to the disadvantage of employees and gives cover to what is effectively intimidation, or an effective denial of the employee’s Basic Law rights should be avoided.

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Part V – Case update

Most, if not all, of the criminal cases in relation to the events since the summer of 2019 have yet to be tried before the Courts. A selection of the key cases that have come before the Courts and for which decisions have been handed down during the Report Period are included in this section so as to keep an eye on the functioning of the judiciary. These cases provide a valuable source of information about the judicial attitude towards the demonstrators and how they should be exercising their rights lawfully.

14 ARREST OF MINORS

F ON BEHALF OF S (A MINOR), Y ON BEHALF OF G (A MINOR)

(a) Overview

These are two administrative law cases involving the arrests of two minors on Yen Chow Street opposite Sham Shui Po Police Station on 29 August 2019 heard before the Honourable Chow J on 3, 4 & 5 September 2019 and 10 September 2019 respectively. The two Decisions were made on 5 September 2019 and 10 September 2019 respectively, granting interim relief for the two minors’ release from Tuen Mun Children and Juvenile Home (“Juvenile Home”). These cases may proceed to judicial review.

(b) Key facts

On 29 August 2019, at around 10:12pm, some 70 protesters gathered on Yen Chow Street opposite Sham Shui Po Police Station (“the Police Station”). At around 11:42pm, the Police conducted a clearance operation in the vicinity of Yen Chow Street, and arrested 18 persons in the course of the clearance operation.

S (15 years old) was one of those arrested by the Police. His arrest, for the offence of “unlawful assembly”, took place outside 58 Yen Chow Street at around 11:50 pm on 29 August 2019. At the time of his arrest, S was wearing a black mask and a black T-shirt, similar that of other protesters at the scene. S denies that he took part in any unlawful assembly, and says that he was a mere passer-by who happened to be caught up in the aforesaid incident in the evening of 29 August 2019.

At the time of her arrest, G was found to be in possession, in her backpack, of a respirator, a surgical mask, bandages, protective guards and muscle pain relief cream. The Judge considered that there is much stronger evidence that G actually took part in the unlawful assembly which occurred on Yen Chow Street opposite the Police Station in the evening of 29 August 2019, or was at least providing aids to those protesters who took part in the unlawful assembly.

On 30 August 2019, the Police made an application to the Juvenile Court at the Kowloon City Magistrate’s Court for a care and protection order against, inter alia, S and G under Section 34(2)(d) of the Protection of Children and Juvenile Ordinance (Cap.213) (“the Ordinance”), i.e. a child or juvenile who is beyond control, to the extent that harm may be caused to him or to others, and who requires care or protection.

On 31 August 2019, the Magistrate adjourned the cases to 27 September 2019 pending a social welfare report about each of S and G respectively for the purposes of considering the Police’s applications for a care and protection order against each of S and G, and made an order, on his own motion, to detain S and G for a period of 28 days (up to 27 September 2019) in the Juvenile Home under Section 24E of the Ordinance.

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For S, on the basis of the limited materials before the Court, the Judge considered that the Magistrate was justified, or at least there is a strong argument that the Magistrate was justified, in making an order for the detention of S under Section 34E(4) of the Ordinance pending the further inquiries, and he did not consider that a writ of habeas corpus should be issued, or that S should be released under Order 54, rule 4 of the Rules of the High Court. He was prepared, however, to grant leave to apply for judicial review on the basis that the application is reasonably arguable with a realistic prospect of success. On this basis, he was also prepared to grant interim relief that S be immediately released from the Juvenile Home subject to specific conditions, having regard to: (i) the importance of a person’s right to liberty, (ii) S’s wish to be able to attend school, (iii) S’s good conduct in the past and the favourable letter from the principal of S’s school, and (iv) the special circumstances of this case. He was also comforted by the fact the Police have indicated that they have no objection to S being released immediately from the Juvenile Home.

As to G, the Judge had some considerable reservations on whether the materials before the court would justify interim relief being granted prior to the application for leave to apply for judicial review being considered. However, he was ultimately persuaded that interim relief should be granted, because of (i) the indication on behalf of both the Secretary for Justice and the Police that they consent to G being released immediately, (ii) the importance that G should be able to attend school at the beginning of the academic year, (iii) the fact that G’s mother is a full-time housewife and has stated that she could devote all her attention to care for G, (iv) the favourable letters from G’s teachers and staff of G’s school, and lastly (v) G’s apparent good performance at the Juvenile Home.

(a) Why this case is important

It shows that the Court will not be sympathetic towards minors purely because they are minors (which may also reflect the very low age of criminal responsibility in Hong Kong). But for the lack of opposition from the Police and the Superintendent of the Juvenile Home, these applications for the immediate release of S and G may well be refused.

15 ESTABLISHMENT OF A COMMISSION OF INQUIRY

KWOK CHEUK KIN & ANOR v CARRIE LAM

(a) Overview

This was an application for leave to apply for judicial review against the Chief Executive’s decision not to establish a Commission of Inquiry into whether the Police have acted in abuse of their powers and the reasons for the recent continuous protests seen in Hong Kong. The applicants acted in person. In his decision dated 11 September 2019, the Honourable Chow J stated that the question of whether a Commission should be established in the prevailing circumstances in Hong Kong is plainly a political decision. The application was accordingly dismissed.

(b) Key facts

It was alleged that the Chief Executive’s failure to establish a Commission to inquire into whether the Police have acted in abuse of their powers and the reasons for the recent continuous protests seen in Hong Kong amounts to improper conduct (行為失當) and is contrary to the reasonable, or legitimate, expectation (合理期望) of the Applicants in this case and the public. Accordingly, the Applicants sought a court order to require the Government to appoint a Commission of Inquiry into the recent protests arising from the proposed Extradition Bill, why the protesters have refused to compromise with the

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Government despite more than 2 months of protests, whether the Police have abused their powers against the citizens, whether the protesters have gone too far, and whether it is reasonable of the Police to use force to stop or suppress the protests.

(a) Decision and key reasons

The Judge considered that the application was not reasonably arguable, and had no realistic prospect of success. Firstly, the Court has no power to appoint, or direct or compel the Chief Executive in Council to appoint, a Commission under the Commission of Inquiry Ordinance (Cap. 86 of the Laws of Hong Kong). Secondly, it cannot be said that the Chief Executive in Council is under a legal duty to appoint a Commission, or has acted in breach of a legal duty for failing to do so. In so far as “legitimate expectation” is concerned, such expectation would generally only arise from a relevant representation, by words or a previous consistent course of conduct, made by the decision-maker. No such representation existed, or was alleged to exist, in the present case. Thirdly, the relief sought by the Applicants are plainly inappropriate to be granted by the court without identifying the precise incident or incidents which the Commission is supposed to inquire into or the scope of inquiry or terms of reference of the Commission.

As the court has repeatedly emphasised, it is not the function of the Court in an application for judicial review to resolve political issues. The Court can only determine legal issues properly defined in nature and format for formal pleadings in an application for judicial review, and which have been raised by an applicant with a sufficient interest in the matter to which the application relates. The present application is an attempt by the Applicants to ask the Court to make a political decision which it has no power to make, and it was therefore rejected.

(b) Why this case is important

This case shows that the Court has no interest in resolving political issues, and the Courts are not the correct avenue for forcing the imposition of a Commission of Inquiry.

16 STOPPING THE MTR SERVICE

KWOK CHEUK KIN v AU YENG PAK KUEN & ANOR

(a) Overview

This was an application for leave to apply for judicial review against two putative respondents being the non-executive chairman and the chief executive of the MTR for an order that the decisions to stop service on 24 and 25 August 2019 are misconduct. The application was dismissed by the Honourable Chow J on 5 September 2019. The reasons for decision were delivered only in Chinese.

(b) Key facts

The applicant contends that as a result of MTR’s suspension of service from Choi Hung Station to Tiu Keng Leng Station on 24 August 2019 and from Tsuen Wan Station to Kwai Fong Station on 25 August 2019, the protesters had no public transport to leave and had to walk home causing road blocks and Police conflict.

The Judge pointed out that the Court has no jurisdiction to decide whether or not a public body or private organisation whether or not involved misconduct. The Court has no power

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to limited or amend their policy decisions unless they involve illegality, Wednesbury unreasonableness or procedural impropriety.

Misconduct is not a ground for judicial review. MTR decided to suspend service in order to protect the safety of its customers and staff and facilities, which cannot be regarded as Wednesbury unreasonableness.

Furthermore, the applicant alleged that he did not participate in the protests on 24 and 25 August 2019. He therefore lacks sufficient standing to support this leave application.

(d) Why this case is important

This case reinforces the applicable and limited grounds for a judicial review, and demonstrates the importance of formulating a case in accordance with the applicable legal principles, including standing.

17 OBSTRUCTING THE MTR

MTR CORPORATION v PERSONS UNLAWFULLY AND WILFULLY OBSTRUCTING OR INTERFERING WITH THE PROPER USE AND OPERATION OF THE RAILWAY

(a) Overview

This was an application for an injunction involving the MTR preventing unknown persons to obstruct, damage or cause disturbances at any MTR station, and was heard before the Court of First Instance.

(b) Key facts

With ongoing protests and repeated incidents of damage to property within “railway premises”, obstruction to railway services and harassment of MTR staff, MTR sought to forbid such acts generally as threatening the safety of both passengers and MTR staff.

The Court held that there was evidence that the MTR By‑laws are being deliberately and flagrantly flouted and that the penalties provided in the MTR By‑laws, the majority being an insubstantial fine, provide no deterrence. Furthermore, in the circumstances of the present case these risks would continue in the absence of the injunction.

The obstruction constituted a public nuisance, which arises where a person does an act not warranted by law, the effect of which is to endanger the life, safety, health, property or comfort of the public, or to obstruct the public in the exercise of rights common to everyone. The court also accepted the MTR’s statement that it had sustained or will sustain particular damage beyond the general inconvenience and injury suffered by the public, giving it locus to pursue a claim for public nuisance, along with claim for private nuisance as occupier of the railway premises. There was also plainly a serious issue to be tried and damage caused to the proper use of the railway service is unquantifiable.

Acts in contravention of the Injunction will be a breach of the by-laws in any event. The Court also held that such a restriction on freedom of expression and freedom of assembly is proportionate to prevent the kind of confrontations and defacing of property within the precincts of the railway stations.

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(d) Why this case is important

The Court is determined to show that freedom is not absolute and without restriction, in particularly when unlawful conduct is involved. Furthermore, when an injunction is granted, any persons in contravention of the injunction would be in contempt of court, and respect for court order is a fundamental part of the rule of law.

18 OBSTRUCTING THE AIRPORT

AIRPORT AUTHORITY v PERSONS UNLAWFULLY AND WILFULLY OBSTRUCTING OR INTERFERING WITH THE PROPER USE OF THE HONG KONG INTERNATIONAL AIRPORT

(a) Overview

During late August, there were a number of events at HKIA by protesters designed to disrupt or “stress test” the airport. This was the hearing of an injunction involving the potential continuation of an ex parte injunction order, heard before the Court of First Instance. In summary, it resulted in granting of an injunction against persons interfering with HKIA.

(b) Key facts

During these events, there were serious incidents at the HKIA which went beyond obstruction to the check-in areas, and included blocking roads and passageways. Protestors clashed with the Police and obstructed timely access by paramedics to attend injured person. Further violence erupted between different parties at the HKIA and threat of disturbances (by unspecified persons) continued.

The Court held that there was a need to implement enhanced measures at HKIA to restrict access to travellers only, and for the injunction to continue as there was a serious issue to be tried as persons unlawfully interfering with operation of HKIA would breach the Airport Authority by-laws and/or cause tort of public nuisance, Further damages to the reputation of HKIA and Hong Kong were unquantifiable.

(d) Why this case is important

The Court in this case showed that it will protect the legitimate interests of HKIA, which includes its smooth operation, the security and safety of Hong Kong citizens and travellers as well as HKIA’s commercial interests and reputation, from potentially disruptive and illegal conduct.

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