Did police have legal grounds to detain Hongkongers on the Tiananmen crackdown anniversary?
Hong Kong Free Press
A heavy police presence all but thwarted attempts to mark the 34th anniversary of the Tiananmen crackdown in Hong Kong last Sunday.
Since 2019, the city has not seen an official commemoration of victims of the crackdown, who died when the People’s Liberation Army was deployed to disperse protesters in Beijing on June 4, 1989. In the following two years, police banned applications to hold the annual candlelight vigil, citing Covid-19 health concerns.
With the disbandment of the vigil’s organiser, the Hong Kong Alliance in Support of Patriotic Democratic Movements of China, in September 2021, no other individuals or groups have applied for police approval to hold a large-scale commemoration.
The Alliance, along with three of its former leaders, have been charged under the Beijing-imposed national security law for allegedly inciting subversion. Prominent democrats, including activist Joshua Wong and media tycoon Jimmy Lai, were sentenced over the banned 2020 vigil.
With Covid-19 social distancing restrictions gone, and the lack of a court ruling on the national security case against the Alliance, many questioned the legality of participating in commemorations of victims of the crackdown.
In the weeks leading up to the anniversary, top Hong Kong officials, including Chief Executive John Lee, Secretary for Justice Paul Lam, and Secretary for Security Chris Tang, gave ambiguous answers over the legality of mourning the crackdown.
‘Likely to cause a breach of the peace’
On the day of the anniversary, Causeway Bay and Victoria Park – where the candlelight vigil was historically held – saw a heavy police presence, with local media citing sources that up to 6,000 officers were deployed.
A total of 23 people – 11 men and 12 women – were taken away by the police on that day. The police told HKFP on Wednesday that they removed “those persons who were likely to cause a breach of the peace, from the scenes to police stations for enquiry.”
A 53-year-old woman was arrested for allegedly obstructing police officers.
The city’s top court cited the definition of a breach of the peace in 2021 as “when harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.”
In a 2012 judgement, the Court of First Instance cited a UK case which stated that unless acts of disturbances involve threats of or actual violence, they could not be deemed a breach of the peace.
Among those taken away by the police were prominent pro-democracy figures, including chairperson of the League of Social Democrats Chan Po-ying, unionist Leo Tang, and ex-standing committee member of the Alliance Tsui Hon-kwong.
Chan was holding a flower and candle before she was taken away by the police, Tsui was seen carrying a small electric candle, and Tang was wearing a T-shirt with the front page of newspaper Wen Wei Po from June 5, 1989, printed on the front.
Mak Yin-ting, the ex-chairperson of the Hong Kong Journalists Association (HKJA) and freelance reporter for Radio France Internationale, was also one of the 23 people taken away by officers.
In a letter sent to the HKJA, the police said that Mak was not wearing a press pass nor was she engaging in any “obvious journalistic behaviour.” The ex-HKJA chair “severely obstructed the normal operation of the police,” and officers’ only option was to take her to a police station. Mak was not arrested or charged.
‘Policing by coercion’
Senior Counsel Philip Dykes told HKFP on Thursday that “a person can only be compelled to leave a public area and required go to a police station if they are arrested for good cause.”
“If a police officer does not have a good reason to arrest a person then forcing the person to leave the scene and go to a police station as an alternative to arrest is arguably a type of false imprisonment,” Dykes said.
The senior counsel said that police officers could always arrest a person on suspicion of them having committed an offence or if they behaved in such a way that there was a good chance of a breach of the peace occurring if the police did not intervene.
Even if a police officer had good reason to believe there was a good chance of a breach of the peace occurring, it would not be “legitimate policing” for officers to require a person to submit to a spell of detention at a police station as an alternative to being arrested for the anticipated breach of the peace, according to Dykes.
“That is policing by coercion because the price paid for not being arrested is submission to a few hours of involuntary detention,” the senior counsel said.
When asked on what grounds officers believed those people were likely to cause a breach of the peace, the police said they had nothing further to add to their original response.
Preventing a breach of the peace
However, in some cases, the police can lawfully remove innocent bystanders to prevent a breach of the peace, as long as the action taken was necessary and proportionate.
In 2009, activist Christina Chan filed a judicial review against the police chief after she and other demonstrators were removed from the scene of an Olympic torch relay in Hong Kong the year before.
Judicial reviews are considered by the Court of First Instance and examine the decision-making processes of administrative bodies. Issues under review must be shown to affect the wider public interest.
Chan and her group protested at the torch relay and held up a Tibetan flag. Chan’s group was met with counter-protesters before they were removed by officers and had to spend an hour at the police station.
While Chan argued that the police chief’s decision prevented her from exercising her constitutional right to hold a peaceful protest, the court ruled that police action was justified.
Police “had no option but to take action” against Chan and her group, the court ruled, as officers were outnumbered by counter-demonstrators.
“When there is no other way available to the police to maintain the peace, and if the action of the police is no more than is necessary and is otherwise proportionate, the police can take action against innocent third parties in order to prevent the imminent breach of the peace,” the judgement read.
‘Very shaky legal grounds’
According to independent legal researcher Edward Wong, police must have “reasonable grounds” to believe that the risk of breach of the peace is imminent rather than a remote possibility. Individuals stopped or arrested by police have the right to ask officers to explain the grounds for their actions, Wong added.
The researcher also said that the police operation last Sunday was “based on very shaky legal grounds.”
In the letter to the HKJA, which condemned a statement from the journalist group urging the police to explain why Mak was detained, the police said officers were conducting stop and search crime-prevention work in a “high risk area,” where crimes such as disrupting order in a public place and committing acts with seditious intent had recently occurred.
“There are two main sources of police powers in terms of depriving a citizen of his or her liberty, for however short a time,” Wong told HKFP.
“One is the common law power to take measures to prevent, or stop, a breach of the peace… and the other is the Police Force Ordinance which authorises police actions in respect of identifiable criminal offences,” he continued.
“There must be some objective factual grounding for the suspicion, and the suspicion must specifically relate to the person [on] whom police powers are exercised. It is, generally speaking, not for the police to say a certain area is at a high risk of offending and therefore perform random stops and searches within the area.”
Section 54 of the Police Force Ordinance stipulates that officers have the “power to stop, detain, and search” anyone acting suspiciously. However, the Ordinance does not specify whether detaining a person includes moving that person to the police station.
Sometimes officers could say that the scene was not suitable for conducting a stop and search, for example when there was no officer of the same sex as the individual stopped, said Wong.
“However, [the individual] would not be brought back to the police station, because [the Ordinance] was referring to a short-term detention,” he said. “If the individual was brought to the police station and detained for a longer period of time, it would not be a proportionate means.”
Not an uncommon approach
However, the tactic used by the city’s police last Sunday was not uncommon.
The same tactic – removing individuals to police stations and later releasing them without charge – is also frequently used in the UK, Wong said.
“It happened during the coronation [of King Charles III], protesters were removed but there were no charges,” he said.
“However, the police operation will not become legal simply because no charges were pressed [against the individuals] in the end.”
Executive Councillor and Senior Counsel Ronny Tong said there was a difference between a formal arrest and inviting a person back to the police station.
“Legally if [the police] want to arrest a person, they need a reasonable suspicion,” Tong said.
“The question is whether the police were arresting that person at the time. If they were inviting [the individual] to provide information at the police station, and the person being taken away agreed to it, then it would not be problematic.”
Tong said he could not critique the events of last Sunday as he did not know the particulars of each situation, but added that there were many ways for individuals to complain about dissatisfactory police work.
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