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Opinion | Now is the time to criminalize the abuse of law enforcers

By Grenville Cross

Many years ago, the Hong Kong Police Force acquired the sobriquet of "Asia's Finest", and it was richly deserved. Ever since, its ability to carry the accolade has been amply demonstrated, most vividly during the insurrection of 2019-20. Although attacked incessantly by fanatical mobs, its officers responded with professionalism of the highest order, avoiding the sort of heavy-handed tactics deployed by their counterparts in, for example, Chile, France and Iraq, where numerous rioters died.

The protest movement, however, was desperate for martyrs, knowing that deaths would galvanize support domestically and generate foreign backing. Its problem, however, was that the police force would not oblige, and this meant protest leaders had to invent fatalities. Whereas, for example, they claimed protesters had been beaten to death by the police at Prince Edward Station, their lie collapsed once it emerged there were no missing-person reports, let alone corpses. At least one of the alleged "victims", having risen from the dead, was subsequently welcomed to London by the serial fantasist Benedict Rogers, founder of Hong Kong Watch, the anti-China propaganda outfit.

However, despite the police force's policy of maximum restraint, the protest movement responded with unprecedented levels of violence. During the riots, over 600 police officers were assaulted, including those who were doused in corrosive liquid, ignited by petrol bombs, and knifed when going off-duty. Some of those officers, together with many others, also faced vile abuse, designed to provoke the sort of aggressive response that would have delighted the foreign media, which would have gleefully broadcast the images around the world. Yet again, however, the police, highly trained as they are, did not succumb, and concentrated on defending the city.

In 2014, the force adopted guidelines, since updated, on how to handle abusive behavior directed at them by members of the public, and professionalism is prioritized. While recognizing that people encountering the police "may react emotionally or defensively", the guidelines advise officers to remain calm and patient in the face of provocation, and to try to defuse the situation. They must try to ensure that their words and body language do not aggravate the situation, and, in any abusive encounter, they should, if their presence is no longer required, withdraw after explaining whatever action they have taken.

In some circumstances, of course, as where somebody is committing or is about to commit an offense, the officers may have no choice but to take enforcement action. If appropriate, advice and warnings should be given, but formal arrests may be necessary if an individual persists in outrageous behavior, whether for breaching the peace or obstructing a police officer. The guidelines, while commendable, reflect a "softly, softly" approach that, in light of recent events, needs to be revisited.

Under the Basic Law, everybody enjoys freedom of speech (Art.27), and this must always be respected. However, as the International Covenant on Civil and Political Rights (ICCPR) recognizes, necessary restrictions, lawfully enacted, are legitimate (Art.19). Such situations arise when restrictions are necessary to ensure respect for the rights or reputations of others, the protection of national security, or the maintenance of public order.

Although the police are trained to expect a certain amount of argy-bargy when discharging their constabulary duties, this certainly does not mean they forfeit their own personal rights and basic dignity. There can be no general entitlement to abuse, demean or otherwise insult a police officer, and the case for greater protection is manifest. Of course, if a breach of the peace is likely to be caused by the abuse, an arrest is possible, but this is not always the case, and there is a legal lacuna, which is alarming.

As seen during the insurrection, once troublemakers start throwing abuse around, tensions can quickly escalate. When that happens, an already fraught situation can rapidly deteriorate, with consequences for public peace. This is undoubtedly why, over the years, there has been talk of criminalizing obnoxious conduct toward the police and other public officers, and this conversation should now be revived.

In 2017, three legislative councilors — Priscilla Leung Mei-fun, Junius Ho Kwan-yiu, and Horace Cheung Kwok-kwan — proposed an amendment to the Public Order Ordinance (Cap 245), to criminalize insults to law enforcement officers. They envisaged a prohibition on any abusive or insulting words, behavior or slogans toward law enforcement officers acting in the course of their duty, punishable with a maximum sentence of three years' imprisonment and a fine of HK$2,000 ($255). Although this proposal, unfortunately, did not come to fruition, the events of 2019-20 have shown just how necessary a law of this type is, and foreign models provide some useful guidance.

In Singapore, for example, the Protection Against Harassment Act was enacted in 2014, and it makes it an offense to insult a public officer, including a police officer (Sect.6). The prohibited conduct covers "indecent, threatening, abusive or insulting" words, behavior or communication "in relation to the execution of duty" of a public officer. The offense is punishable with one year's imprisonment and a fine.

In France, moreover, the law prohibits the brazen contempt of public officers. It is designed to protect public officers acting in the execution of their duty from insults, including police officers, customs officers and prison officers. The contempt can take the form of words, gestures, writings or images, it should be directly addressed to the victim, it must be intended to infringe the dignity of, or respect for, the victim, and the offense needs to have occurred because of the victim's public functions. On conviction, an offender faces a year's imprisonment and a fine, rising to two years' imprisonment if the offense is committed by a group.

To have a Singapore-style law in Hong Kong to protect police officers from abuse while they are on duty is not a novel suggestion, and precedents already exist. Although not widely appreciated, some public officers already enjoy protection from abuse, and this has facilitated their work. Under the Public Health Ordinance (Sect.139), the Births and Registrations Ordinance (Sect.21), and the Food Safety Ordinance (Sect.54), it is an offense to use abusive language towards the relevant public officers, with sentences ranging from HK$25,000 to six months' imprisonment. These protections have not sparked any serious freedom of speech concerns under the ICCPR, and they have not been problematic in practice.

As things stand, it is an offense, under the Offences Against the Person Ordinance, to assault, resist or willfully obstruct any police officer acting in the execution of his duty, and it is punishable with two years' imprisonment (Sect.35). If the abuse, demeaning or insulting of a police officer on duty were also to be incorporated into the categories of prohibited conduct, it would undoubtedly help the police force in discharging its public duties. Just as they protect the public, so also must police officers in turn be defended from abuse and other indignities intended to humiliate them, diminish their standing or provoke their ire.

(Source: China Daily)

 

The author is a senior counsel and law professor, and was previously the director of public prosecutions of the Hong Kong SAR.

The views do not necessarily reflect those of DotDotNews.

Read more articles by Grenville Cross:

Opinion | Jimmy Lai appeal: Political posturing an affront to the United Nations

Opinion | Court of Final Appeal remains strong and vibrant despite departures

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