On a recent Tuesday, the Hong Kong Court of Appeal decided to expunge new evidence introduced by applicants. The evidence aimed to prove systematic and frequent non-compliance of insignia policies by frontline police officers. As per the appellate court’s reasoning, the sweeping non-compliance of a consistent or distinct pattern constituted a new assertion that fell outside the limitation of the applicants’ original case.
The application to strike out the new evidence was triggered by a government attorney, asserting that accepting new proof of non-compliance would be prejudicial and unfair. This position was validated by the court, mainly because the government respondents had already refuted or clarified previous examples given by the applicants.
The applicants’ introduced new evidence was also seen as denying the government the chance to address the allegations at the lower court level, and hence deemed unfair. The applicants’ legal representatives argued that the evidence was correctly introduced to counter the government’s claim that instances of non-compliance were isolated incidences.
The applicants stuck to their original case point that there’s systemic failure by the police to adhere to insignia policies. The appellate court dismissed both arguments but did accept part of the applicants’ evidence to challenge the government’s claim.
Additionally, a government attorney argued that non-compliance instances should be compared to the scale of deployment. Noteworthy in the new evidence, were calculations indicating a range between 45,243 to 94,350 incidences in five months for anti-riot officers, while there were between 227 to 3,781 instances for special tactical contingent officers in the same period.
In 2020, five judicial reviews challenged the lawfulness of police’s insignia policy non-compliance during their non-covert duties. This came in the wake of the inflicted 2019 anti-government protests. The Hong Kong High Court declared that the Commissioner of Police violated Article 3 of the Hong Kong Bill of Rights by failing to ensure compliance. It was determined that the existing complaints system, overseen by the Independent Police Complaints Council, was insufficient to disperse the obligations in line with Article 3 of the Bill of Rights.
Article 3 states that no one should be subjected to degrading, inhuman, cruel treatment or punishment. The High Court invoked the reasoning from the European Court of Human Rights in its ruling and noted that the right prohibits the use of unnecessary or excessive force by police officers. The government has a positive duty to investigate suspected cases of Article 3 breaches, according to the court.