SCMP Saturday, December 23, 2000

Complainant or defendant?


The headline in the police force's internal magazine, a publication designed to boost the morale of "Asia's finest" and usually filled with a self-congratulatory articles, was unusual.
"CAPO vindicates innocent officer," declared the magazine, Offbeat, referring to the Complaints Against Police Office (Capo), which normally spends its time investigating allegations made by members of the public against officers.
The office has long been controversial: staffed by 118 police officers who investigate their colleagues' alleged wrongdoings, it has been accused of lacking impartiality.
Capo was back in the news again this week when the Independent Police Complaints Council, which monitors the work of Capo, overturned Capo's earlier finding that complaints from three protesters about the repeated spraying of pepper foam and punching of demonstrators were not substantiated. The council said the repeated use of pepper spray was unacceptable.
The headline in the police magazine in August about the earlier case of alleged abuse caught the eye of human-rights activist Law Yuk-kai, who closely monitors allegations of police brutality or forced confessions.
The article, with a smiling photograph of constable Au Pak-chuen, explained that the police officer, who had been the subject of a complaint by an alleged illegal immigrant, had been cleared. The immigrant was then prosecuted for making a false complaint.
The Capo officers who investigated the case were commended for their "good work" by assistant commissioner in charge of service quality, Harry Blud, who formerly headed the police public-relations branch.
The commendations surprised Mr Law, director of Hong Kong Human Rights Monitor. "They are being commended for investigations not against police officers but against complainants," said Mr Law.
Attempts by the South China Morning Post to further investigate this unusual case were blocked by the person in charge of the office handling complaints from the public, Senior Superintendent Ip Lau-chuen.
The Offbeat article mentioned that the alleged illegal immigrant suffered head injuries when he was arrested on September 23 last year in Tsuen Wan by officers of the New Territories South emergency unit. He was repatriated after receiving medical treatment.
But a month later, he was said to have been intercepted at the border and was alleged to have assaulted a police officer. He was charged and sentenced to 15 months' jail.
The immigrant then lodged a complaint claiming his head injuries were caused by Constable Au hitting him with a baton during the arrest in Tsuen Wan. "But investigations revealed PC Au did not even take part in it [the arrest], he only stood guard over him at Yan Chai Hospital before taking him to Tsuen Wan police station the next day," said the police magazine.
Charges were laid against the migrant for making a false complaint and he was sentenced to another four months' jail.
The magazine said the officer who arrested the immigrant and a witness "verified" he had suffered an accidental fall, causing the head injuries. But Mr Ip refused to say who the witness was in response to questions from the Post.
"I regret that the law and our procedure in relation [to] personal data privacy prevent us from providing you with information on specific cases, which contain personal data," said Mr Ip, in a faxed letter.
An interview with Mr Ip and Chief Superintendent Steve Chandler - officer in charge of the complaints and internal-investigations branch - about this case and the operations of Capo was cancelled and a letter sent in response to questions.
Letters of commendation were awarded to the Capo officers who investigated the case: Chief Inspector Charlie So Chak-hung, Senior Inspector Jacqueline Yao and Sergeant Shum Hing-leung.
"What I can say is that the case you refer to which appeared in Offbeat focused on the fact that Capo was fair and impartial, both to members of the community and police officers alike, in its investigations," said Mr Ip.
"The officers from Capo who were involved in this investigation did their duty, and they did it to a very high standard; they were complemented for the quality of their work but not the final outcome."
He did not say what was so good about the quality of the officers' work.
This case, of a complainant being prosecuted for making a false complaint, is not an isolated one. The numbers have recently increased and human-rights activist Mr Law and others are concerned.
Although only one person was prosecuted for making a false complaint last year and three in 1998, 11 have been prosecuted so far this year, according to figures from Capo. These figures compare with no prosecutions in 1997, one in 1996 and four in 1995.
"That is not a good sign," said Mr Law. "It is rising dramatically."
Mr Law called on the Independent Police Complaints Council - the body which supervises cases handled by Capo but lacks power to conduct its own investigation - to examine more closely complaints which are turned around, alleged to be false and which are used to prosecute members of the public who have a grievance against police.
The council had to ensure that complaints which suffered from problems with evidence, such as a lack of independent witnesses, were not used as an "excuse" for launching prosecutions, Mr Law said.
He said Capo lacked independence and needed to be careful in launching prosecutions against complainants. "Unless it is a very clear case in which the evidence is so cogent and corroborated by independent witnesses, there should be no prosecution [of false complaints]."
Heightened prosecutions of members of the public for making allegedly false allegations could deter others from making complaints out of fear they could be retaliated against, he said. But the human-rights activist said he did not object to the charging of people who made malicious complaints.
Criminologist Wong Kam-chow says the prosecution of people allegedly making false complaints highlights the need for an independent body to investigate police wrongdoing.
"If they are going to do it, they should leave it to another, more independent body to do that sort of thing," said Assistant Professor Wong, of the Chinese University of Hong Kong's department of government and public administration.
Although senior police are opposed to the creation of an independent body to investigate police, Mr Wong believes one will eventually be established in Hong Kong in line with the international trend towards outside "policing of the police".
Opposition from within the Government and police circles to an independent investigative body stemmed from an attitude that civilians did not understand police work, said Mr Wong.
They also worried that it could "politicise" the complaints process, with election candidates seeking to champion cases of police brutality.
Mr Ip, of Capo, insisted there was no change in its policy of handling complaints. Asked to explain the increase in the number of prosecutions of false complaints, he said people who had a brush with the law were seeking revenge.
"There are strong indications that these complainants, who were subject of law-enforcement actions of some sort, attempted to raise malicious complaints against the arresting officers as a means of retaliation."
The decision to prosecute was taken by the Director of Public Prosecutions within the Department of Justice, he said. A Department of Justice spokesman denied Mr Law's concerns that the prosecution of false complaints might deter members of the public from lodging complaints.
"The number of persons charged with making a false complaint is miniscule when compared with the number of complaints to Capo," he said.
The 11 complainants charged this year compares with 3,218 cases reported to Capo. The office said the number of complaints had been rising and it was reluctant to speculate on the reasons for the increase.
Many factors could be involved, Mr Ip said. Some he could identify were an increased publicity campaign by the Independent Police Complaints Council heightening awareness of the complaints process and higher expectations in society of better service from police.
The Justice Department spokesman said prosecutions were only launched when complaints were clearly falsely made.
"Although not strictly required as a matter of law, as a practical matter if there is no clear and independent evidence of falsity [as opposed to one person's word against another], our conclusion would almost invariably be that there would be no reasonable prospect of success and thus no prosecution would be considered."
The spokesman defended the decision to prosecute, saying that in order for such prosecutions to succeed, it had to be proved the complainant had knowingly made a false report. "In the circumstances, it is difficult to see how any person could be deterred from making a complaint which he or she believes to be a valid one," he said.
"Equally, given the amount of time, money and resources which are expended on the investigation of Capo complaints, it is clearly in the public interest that when someone makes a Capo complaint which he or she knows at the time that it was made is false, that such a person is dealt with according to law.
"Such a course is not only in the public interest but also fair to the officers against whom demonstrably false complaints are made."
Although Capo has long been criticised as lacking independence, criminologist Mr Wong said the current system of police investigating police had strengths. Among these were the tendency of internal investigations to be more in-depth than those conducted by an outside agency, such as the Independent Commission Against Corruption, a body which has been mentioned in the debate over police investigations as having a potential role to play.
But internal investigations tended to be biased, he said. Meanwhile, probes run by outsiders tended to be clumsy but did seek to be fair to the police.
Mr Wong believed senior police and government officials around the world did not want to empower independent organisations to investigate police because of the "Dirty Harry" syndrome. Dirty Harry is a character, made famous by Hollywood actor Clint Eastwood, who pursued justice on the streets instead of the courts and was eventually investigated as a result. Mr Wong said officials wanted some latitude so that perceived civilian troublemakers who, for lack of evidence, could not be prosecuted could be dealt with informally, outside the judicial system, without fear of retribution.
The police force's attitude is clear. "In the commissioner's view, the current system with its full, independent civil oversight by the Independent Police Complaints Council is effective and efficient and it serves to assure the community of Hong Kong their police are properly managed and supervised," said Mr Ip of Capo in his letter.
At least one active member of the council is not as concerned as Mr Law or Mr Wong about the possible ramifications of an increase in prosecutions for false complaints.
Solicitor and former Eastern District Board chairman Chan Bing-woon said he had considered the issue and decided the best approach was to go after anyone believed to be trying to set up police officers.
"Those who are making false complaints for whatever reasons should be brought to book. Every time people make false allegations, they are wasting taxpayers' money."
He said the rise in prosecutions over false complaints arose because complainants were seeking to invent allegations in a bid to get themselves out of trouble. "The complainant has probably broken the law themselves and is looking for ways to mitigate their crime."
In the meantime, the likelihood of the Independent Police Complaints Council being given stronger powers to conduct its own investigations remains remote.
A first step towards a truly independent council was made before the 1997 handover, when the British-run administration sought to make the Independent Police Complaints Council a statutory body, giving it more permanence in law rather than having it rely on the administrative order which enabled it to be established.
Human-rights activist Law Yuk-kai complained there was no sign yet of a revised bill after an earlier one was withdrawn by the Government when legislators sought to give the body more teeth by giving it powers to investigate.
Glenn Schloss ( ) is a staff writer for the Post's editorial pages.