For discussion
on 12 March 1998

Provisional LegCo Panel on Security
Measures to Prevent
Fabrication of Evidence"

Purpose

This paper informs Members of the results of investigations on complaints against Police relating to fabrication of evidence (FOE) in the past three years. It also explains the principles and procedures for handling sub-judice complaints and elaborates on the procedures for processing crime reports where both parties insist that the other side be at fault in the case. Background

2. A paper setting out the measures to prevent the occurrence of innocent persons being framed by Police officers was submitted for Members’ consideration at the last meeting on 19 February 1998. After discussion, Members asked for further clarification on the mechanism for handling FOE complaints, especially the sub-judice cases. As a supplement to the paper submitted at the last meeting, additional information including statistics on FOE allegations and procedures for handling sub-judice complaints are set out in the ensuing paragraphs to facilitate Members’ further discussion.

Results of Investigations on FOE Complaints

3. There were 325, 398 and 296 FOE allegations received by the Complaints Against Police Office (CAPO) in the years of 1995, 1996 and 1997 respectively. Up to 31 December 1997, the Independent Police Complaints Council (IPCC) has endorsed the results of investigations on 322, 369 and 122 allegations received by CAPO in 1995, 1996 and 1997 respectively. Among these 813 allegations, about 60%, i.e. 486 allegations, were classified as "withdrawn" or "not pursuable". By eliminating these two categories, there were 327 FOE allegations fully investigated by CAPO in the period. Of these 327 FOE allegations, 265 were found to be "false" while 50 were "unsubstantiated". 10 were "substantiated/substantiated other than reported/not fully substantiated" and 2 with no officers at fault.

4. Upon completion of investigation, criminal proceedings have been instituted against five Police officers and three were convicted for "Doing an Act Tending and Intended to Pervert the Course of Public Justice". Of the three convicted , two were sentenced to two years’ imprisonment and the other was sentenced to 18 months’ imprisonment suspended for two years. In addition, 22 Police officers were disciplined in various ways, including given "reprimand", "warning" or "advice" with entry in their record of service, or given "advice" without entry in record of service. For details, please see Annex A.

Procedures for Handling "Withdrawn" and "Not Pursuable" Complaints

5. There are established procedures governing withdrawal of complaints. The investigator will ascertain from the complainant the reason for withdrawing the complaint. Whenever the investigator feels that a complaint which is being withdrawn is likely to be substantiated, he will advise the complainant that, notwithstanding the withdrawal, the investigation will continue. As regards "not pursuable" cases, they are so classified when based on the information provided by the complainant, the identity of the complainee(s) cannot be ascertained; or it has not been possible to obtain the co-operation of the complainant, e.g. the complainant declines to make a statement. Like other complaints, the results of investigations of both "withdrawn" and "not pursuable" cases are subject to close scrutiny by the IPCC before they are endorsed.

Procedures for Handling Sub-Judice Complaints

6. A sub-judice complaint is a complaint against a Police officer that relates to a case to be heard in court. In general, most of the FOE complaints are sub-judice cases.

7. CAPO will not suspend the investigation on a FOE complaint automatically just because it is a sub-judice case. In other words, being a sub-judice complaint does not necessarily mean that there is no investigation into the case before the conclusion of the court trial. There are clearly laid down procedures for CAPO to follow when handling sub-judice complaints. They are designed to ensure that the complaint and the related court case are handled in a fair and objective way and that the rights of the complainant as a defendant in a court case will not be infringed for making a complaint to CAPO.

8. On receipt of a potential sub-judice complaint, CAPO will collect the basic facts including the time, date, location and nature of the allegation and the identity of the officer(s) concerned, if known, from the complainant. The complainant will be advised to seek legal advice as he may reveal certain matters that could be important to his defence during his court trial. A bilingual "Guide to Complaints in respect of Sub-Judice Complaint" at Annex B will be given to the complainant to whom the sub-judice procedures will be explained in detail.

9. Having conducted a preliminary enquiry which includes, among other things, a scene visit and interview of independent witnesses, CAPO will decide whether the complaint falls within the sub-judice category. Even if it is a sub-judice complaint, investigation will still proceed in the following circumstances –

  1. the complaint does not concern matters which will impinge on the Court's prerogative;

  2. the complaint is serious and there is sufficient evidence or some other good reasons to suggest that it is likely to be substantiated;

  3. there is indication of Police misconduct sufficient to justify interference with the prosecution;

  4. where the complainant unequivocally requests that his complaint be investigated and not treated as sub-judice. For example, a complainant decides to give a full statement when lodging a complaint after being briefed about the sub-judice procedures or raises objection when Police have determined the case as sub-judice;

  5. it is in the interest of justice not to suspend the investigation of the complaint; or

  6. the investigation can proceed in-part for the preservation of evidence.

In arriving at its decision, CAPO will consult the Department of Justice.

10. Subject to the advice of the Department of Justice, charge(s) against a complainant will be withdrawn if the evidence against him is found suspicious or inadequate to prove the charge(s). In such a case, CAPO will continue their investigation to see whether there is adequate evidence to prove the FOE allegation.

11. Investigation of the complaint will be suspended if the conditions in paragraph 9 cannot be met. Both the complainant and the complainee will be informed if CAPO decides to suspend the investigation. Upon the conclusion of the court proceedings, CAPO will review the complaint to see whether there is a need to re-open the investigation. If it is considered that the results of the court case or matters arising from the court proceedings in effect finalize the complaint, and that no further investigation is necessary, a final report will be compiled and submitted to the IPCC for review and endorsement. Otherwise, the complaint will be investigated according to the normal procedures.

Crime reports where both parties are blaming the other side for the case

12. Some Members have expressed concern about how the Police would decide which party should be prosecuted in cases where both parties involved insist that the other side be at fault in the case. In handling crime reports, the Police will examine each case on its own merits by taking into consideration all of the evidence available. In addition to the statement given by the parties involved, the Police will also consider statements from independent witnesses and other evidence including scientific evidence, medical evidence and circumstantial evidence. Where there are doubts, e.g. the side of the party to be prosecuted and the kind of charges to be imposed, advice will be sought from the Department of Justice before laying any criminal charges. In addition, all cases to District Court or above are scrutinized by a Government Counsel or above and all Magistrate Court cases are reviewed by the Court Prosecutors before proceeding with the prosecution.

Conclusion

13. The Force management takes a very serious view on FOE cases. To prevent the occurrence of such cases, there are well established procedures for recording and processing crime reports including the handling of evidence, and a Police complaints system with checks and balances. A high standard of values and ethics, with emphasis on integrity and honesty, are inculcated among Police officers through various means. Above all, it should be borne in mind that all cases are put to court for a fair and independent trial.

Security Bureau
March 1998