KWOK HO CHEUNG v COMMISSIONER OF POLICE

HCAL 3616/2019

[2019] HKCFI 3052

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 3616 OF 2019

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D E C I S I O N

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1.  This is an application for a writ of habeas corpus ad subjiciendum to be issued by the High Court to bring forward the applicant, Mr Kwok Ho‑cheung, Benjamin, who is being detained in the custody of the police in Hung Hom or Kowloon City Police Station, Kowloon.

2.  The applicant was arrested by appointment for arrest at about 5:45pm yesterday, 3 December 2019, for an offence or offences in connection with acting or behaving in a disorderly manner in public places contrary to section 17B of the Public Order Ordinance, Cap 245, arising from events that had taken place on or around 5 August 2019.  It is apparently being alleged or suspected that the applicant took part in acts that obstructed or blocked certain carriageways. He has not yet been charged with any offence and has exercised his right of silence when a cautioned statement was taken from him shortly after 6pm yesterday.

3.  The police also carried out a house search and a vehicle search at the applicant’s residence and his vehicle and eight items had been seized.  There is a question arising from the seized items as to whether they might attract legal professional privilege, but that is not a matter that impinges upon the present application.

4.  The basis of the present application is essentially that all investigative procedures have been completed and that any further detention of the applicant is therefore wrongful.

5.  The writ of habeas corpus is of course a very special remedy on an application for which the court is primarily concerned with the legality of the detention.  The purpose of an application for habeas corpus is to determine whether there is lawful authority for the detention.  It is not, as such, an occasion for the review of the merits of any underlying charges or, in a general sense, the reasonableness of the steps that have been taken by the law enforcement agency.

6.  In the present case it would appear that the legal basis upon which the applicant is being detained is section 52 of the Police Force Ordinance, Cap 232, which provides:

“ (1) Whenever any person apprehended with or without a warrant is brought to the officer in charge of any police station or a police officer authorised in that behalf by the Commissioner, it shall be lawful for such officer to inquire into the case and unless the offence appears to such officer to be of a serious nature or unless such officer reasonably considers that the person ought to be detained, to discharge the person upon his entering into a recognizance, with or without sureties, for a reasonable amount, to appear before a magistrate or to surrender for service of a warrant of arrest and detention or for discharge at the time and place named in the recognizance; but where such person is detained in custody he shall be brought before a magistrate as soon as practicable, unless within 48 hours of his apprehension a warrant for his arrest and detention under any law relating to deportation is applied for, in which case he may be detained for a period not exceeding 72 hours from the time of such apprehension. Every recognizance so taken shall be of equal obligation on the parties entering into the same and shall be liable to the same proceedings for the estreating thereof as if the same had been taken before a magistrate.”

7.  As submitted by Mr Chan on behalf of the respondent, the provision is for the arrested person, who was detained in custody, to be brought before a magistrate as soon as practicable.  As stated in R v Holmes ex parte Sherman and Another [1981] 2 All ER 612 at 616b:

“ Practicability is obviously a slightly elastic concept which must take account of the availability of police manpower, transport and magistrates’ courts. It will also have to take account of any unavoidable delay in obtaining sufficient evidence to charge, but this latter factor has to be assessed in the light of the power of the police to release on bail conditioned by a requirement to return to the police station when further enquiries have been completed, and a power to release and re‑arrest when the evidence is more nearly sufficient. Any such release may involve a risk that the arrested person will abscond, commit further crimes or interfere with witnesses, but this risk has to be balanced against the vital consideration that no man is to be deprived of his liberty save in accordance with the law.”

8.  In that case, Donaldson LJ said “as soon as practicable” means within about 48 hours at most. But it is unclear whether that has been established as a rule of law in this jurisdiction, though Mr Chan has told me that the general practice is for an arrestee not to be detained for longer than 48 hours in Hong Kong before being brought to a magistrate.

9.  Based on the instructions he has taken at short notice, Mr Chan has indicated to this court that the criminal investigation is still ongoing and it is not correct to say that all investigative procedures have been completed.  He said that there were three other arrestees previously arrested in connection with the offence in question and that there were 12 other arrestees in the police station last night in relation to other cases which have occupied to the hilt the manpower of the police station in question.

10.  In particular, he said that the fingerprint machine has been in use for other cases and that the police still need to ascertain the fingerprints of the applicant and have them input into the system for examination, which is part and parcel of the investigation.  There is also the need to put further matters ascertained by the police from searches and from the fingerprint tests to be conducted to the applicant for his further comment by way of cautioned statement.  Within the constraints of not revealing excessive details that might compromise the ongoing criminal investigation by the police, Mr Chan said there is a need for the police to piece together all the available evidence that is still emerging in relation to the offence in question, where at least four persons are suspected to have taken part.

11.  The court on an application such as this is concerned with the situation at present.  Mr Chan has emphasised that when the application was made shortly after 12 noon today, the applicant had only been detained for about 18 hours and that even now, at the time of the hearing, which commenced at 4pm, we are still far short of 48 hours.

12.  Mr Chan has further said that there does not appear at present to be any exceptional circumstance that suggests that it is likely to take longer than 48 hours for the applicant to be detained.  But he submits, and I accept, that in the present case, in all the circumstances it is not possible to conclude that there has been an abuse of power in the detention of the applicant which is what writs of habeas corpus are ultimately concerned with.

13.  For these reasons, the application will have to be dismissed.

Ms Debora Poon, instructed by Cheng & Co, for the Applicant

Mr Louie Chan, GC of the Department of Justice, for the Respondent