Tuesday, September 22, 2015

Cross-border Implications of Chinese Police Brutality

The recent trial of the men who attacked news editor, Kevin Lau, raised the issue of police brutality on the Chinese mainland in cross-border criminal cases. Without a fugitives surrender agreement, there is little law to govern the capture and return of suspects from the mainland to Hong Kong. Important legal questions remain unclear. Do suspects enjoy Basic Law rights while being questioned by mainland officers? What are the consequences in Hong Kong if those rights are violated? Common law rules of evidence require that a confession given to a person in authority must be proven to be voluntary to be admissible, meaning proof of the absence of threats, inducements and oppression when the statement was taken. A statement taken in Hong Kong may appear to be voluntary but can still be excluded if oppression from the mainland interrogation taints the Hong Kong investigation. 
     Beyond excluding confession evidence, which the prosecution may not need, are there other implications for the criminal trial? At one time common law courts paid little attention to police violence unless the conduct compromised the quality of the evidence or violated a defendant’s right to silence. Courts now show greater concern with how cases have been investigated and pursued. Judges have a duty to ensure “that the integrity of the judicial system is not compromised” and that the “administration of justice is not brought into disrepute” (HKSAR v Muhammad Riaz Khan (2012) 15 HKCFAR 232, [18]). Serious police illegality or misconduct may amount to “an affront to the public conscience” and require the criminal proceedings to be judicially stayed, meaning permanently suspended (HKSAR v Lee Ming Tee (2001) 4 HKCFAR 133, [149]).
     While the law here is still developing, recent Canadian cases have held that police brutality can amount to an abuse of process warranting a stay of proceedings. In R v Bellusci [2012] 2 SCR 509, the defendant prisoner was charged with intimidating a guard; the charge was stayed because the guard in revenge had grievously assaulted the prisoner, who was handcuffed and shackled. In R v Tran (2010) 103 OR (3d) 131 (CA), very serious home invasions charges were stayed where the defendant, after turning himself in, was beaten by two officers who broke Tran’s jaw and tried to conceal their misconduct. In a robbery case, R v Singh, 2013 ONCA 750, the court wrote: “society cannot tolerate – and the courts cannot permit – police officers to beat suspects in order to obtain confessions”. Three officers were involved in the beating and one said to the defendant, “sorry…It’s part of my job”, to which the court said, “It is not.” Cases have also accepted that police brutality can justify a reduction in sentence (R v Nasogaluak [2010] 1 SCR 206).
     Following the approach of these cases would be a strong affirmation of judicial integrity and the rule of law. But the greater hurdle in any case will be to convince the court that the abuse did in fact take place.  Written by Simon Young.  An edited version of this article was published in the South China Morning Post on 22 September 2015 with the online heading of "Upholding the rule of law: abuse of defendants no longer 'part of the job'".

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