Support Wing has introduced a number of improvements following a review of the existing procedures relating to the search of persons to be detained in police custody. The improvements, in the form of revised procedures, took effect from July 1, and have been incorporated into the Police General Orders (PGO) and the Force Procedures Manual (FPM). A set of Guidelines has also been introduced to assist frontline officers in complying with the revised procedures.

The review began in October last year after the Administration had briefed the Legislative Council Security Panel on police practices in respect of searches of detained persons. The catalyst of this briefing stemmed from allegations of officers abusing their authority when searching arrested persons.

In an interview with OffBeat, Assistant Commissioner (Support) Austin Kerrigan pointed out that the revised procedures were the outcome of Stage I of the review, designed to ensure that the Commissioner met his duty of care responsibilities toward detained persons particularly in the area of human rights. The Police owe a duty of care to detained persons in police custody, which means complying with human rights provisions.

"The LegCo panel was concerned about the human rights of the persons to be detained in police custody, so we took a critical look at the relevant PGO and FPM. We found that basically from both a practical point and legal point of view, we were complying with human right provisions, but accepted that there were areas that could be improved on," he added.

Mr Kerrigan went on to say: "The human rights legislation says you can't subject people to arbitrary search or unlawfully interfere with their privacy. When people are deprived of their liberty, the law requires that steps are taken to protect their privacy and dignity. As police officers, we are required to comply with the law, including the Basic Law, Hong Kong Bill of Rights Ordinance, Cap. 383, statutory and common law and Police General Orders which are made under the authority of the Police Force Ordinance, Cap 232. Therefore, it's important that the revised procedures are strictly followed."

"DoJ (Department of Justice) has confirmed that searches conducted in accordance with the revised procedures would not be an unlawful or arbitrary interference with a person's privacy or dignity."

CP's decision

Speaking of amendments to PGO, Mr Kerrigan said: "PGO clearly state that the Commissioner has determined that for Police officers to properly discharge their statutory functions and fulfil the Force's duty of care to persons detained in custody and to ensure the safety of others who may come into contact with them, a search will be conducted on all persons to be detained in police custody."

Recognising that search of a person is an intrusion of privacy and dignity, the FPM specifies that "any search carried out must not be arbitrary, and the scope of a search should be balanced against the need for a police officer to carry out his statutory duty and should be determined on a case-by-case basis according to the prevailing circumstances and be no more than what is rational and proportionate to achieve its purpose."

The PGO, therefore, specifies that the Duty Officer must determine the scope of the search to be carried out which is case specific, and explain to the detained person the reasons for, and the scope of, the search. In addition, the Duty Officer will have to provide the detained person with a copy of the "Custody Search Form" (Pol 1123), explain its contents and ask the detained person to sign the Form as an acknowledgement that his rights have been read over to him.

Mr Kerrigan stressed that by informing the detained person of the reason(s) as to why a search was to be conducted and the scope and having the detained person acknowledge that this had been done would facilitate the search. This process was not subject to negotiation and it would be made clear to a detained person that a search would be carried out using, if necessary, minimum level of force.

To assist Duty Officers in determining the scope of a search, Mr Kerrigan continued, a clear delineation is made between custody searches of different scopes including "removal of clothing" "non-removal of clothing" and "removal of underwear". The Duty Officer will ensure that a detailed record of the search carried out is entered into the Communal Information System (CIS).

"We emphasise the specific requirement to justify and fully document the reasons for and the scope of a search and a detailed record of a search is to demonstrate that a detained person's rights have been properly explained and provided for. The second reason why it's important to keep a detailed record is to protect officers from allegations of abuse of authority or impropriety and the CP from claims that searches are arbitrary and that detained persons are not treated properly. The record will also provide CP with a clearer picture of the treatment of detained persons.'

Guidelines for frontline officers

Mr Kerrigan pointed out that the new guidelines have been designed to help frontline officers understand the law relating to detained persons' human rights, the reasons why a search is necessary and the process a Duty Officer must go through in deciding the scope of a search. The guidelines stress that any level of search should not be arbitrary and must be conducted in accordance with the relevant PGO and FPM.

"If we follow these guidelines in conducting searches, we will be complying with human right requirements," he noted.

Mr Kerrigan went on to emphasise the supervision aspect in respect of custody searches, adding that it is important for supervisory officers to conduct supervisory checks in the CIS Supervisory Function to make sure that officers comply with revised procedures.

"We will conduct a review in three months to make sure the revised procedures are working and achieving the objective of protecting the human rights of detained persons. The management will monitor the new arrangements, and the findings of the review may provide scope for further refinement of procedures," Mr Kerrigan concluded.

At the same time, the Force Management appreciates that conducting stop and search in the streets, like searching of detainees, is a challenging and difficult task. And it can meet with misunderstandings and unfair criticisms. However, the Force firmly believes that this is only done for the sake of a safer community and maintaining Hong Kong as one of the safest cities in the world.

Mr Kerrigan and SIP Sit Ka-ho detailing the revised procedures and new guidelines in respect of search of persons in police custody