Police powers

Police powers

1. Stop and Search

   • stop vehicles/persons for stolen goods
     • PFO s.55
       • stop, search, detain
       • any vehicle
       • REASON to suspect
       • anything stolen may be found
       • OR any person reasonably suspected of having/conveying anything stolen
   • Common law
     • No power to stop + search
       • Person has right to try to free himself from PO - can use reasonable force
         • UNLESS arrested on valid grounds
           • --> use of force = thwarting a lawful arrest OR resisting officer in execution of his duty
             • at every stage of investigation - able to consult privately with lawyer
               • UNLESS unreasonable delay/hindrance is caused to investigation or justice - RP preamble
           • --> Officer has power
             • grab, detain, use reasonable force someone about to cause a breach of peace/harm to another
             • no power to seize anything found
   • PFO s.54(1)
     • in public place/vessel, any time
     • ACTS IN A SUSPICIOUS MANNER
       • 1. ask for proof of ID
       • 2. DETAIN for reasonable period
         • + ask whether he's suspected of having committed an offense
           • BUT can't compel anyone to go to police station against their will (RP preamble)
       • 3. if officer considers it NECESSARY...
         • 3A. search person
           • for anything that may present a danger to the officer
         • 3B. detain person
           • for such period - as reasonably required for the search
         • subjective judgment
           • must rely on some objective facts --> decide person is acting suspiciously
             • i.e. location, situation, demeanor, conduct, INTUITION, etc
   • PFO s.54(2)
     • in public place/vessel, any time
     • REASONABLY suspects - committed or about to/intending to COMMIT AN OFFENSE
       • 1. demand ID
       • 2. DETAIN for reasonable period
         • + officer ask whether he's suspected of having committed an offense
       • 3. SEARCH
         • anything of VALUE to investigation of ANY OFFENSE
         • if offense involves OFFENSIVE WEAPONS - can search for this in a bpublic place
       • 4. DETAIN for the search
       • suspicion must be OBJECTIVELY REASONABLE
         • conduct, demeanor, circumstances

2. Arrest

   • with warrant
     • apply to magistrate
     • show warrant upon arrest
     • bring D before M, reasonable time
   • without warrant
     • ANY PERSON
       • CPO s.101(2)
         • arrest any person
         • reasonably suspects
           • 1. genuine suspicion
             • not just following superior's orders
           • 2. reasonable grounds
         • arrestable offense
         • use force as is reasonable in circumstances --> prevent crime + assist in lawful detention
       • citizens have duty to assist POs apprehend suspects - RP
     • POLICE OFFICER
       • PFO s.50(1)
         • --> arrest: when PO-
           • 1. states in terms that he is arresting
             • clear that D is under compulsion, but no specific words
             • different procedures <-- age, ethnicity, intellect, disabilities
           • 2. use force to restrain D
             • reasonable in the circumstances (CPO s.101A(2))
               • if D (may be lawfully apprehended) forcibly resists
                 • PO/3P may use ALL MEANS necessary to effect the arrest
               • --> prevent crime OR effect/assist in lawful arrest
           • 3. makes CLEAR that he will use FORCE to PREVENT D from going where he wants, if necessary <-- words/conduct
         • 2. OR reasonable belief --> person will be charged with an offense
         • 1. reasonable suspicion --> guilt of an offense that is:
           • 1. sentence fixed by law
           • 2. first convictions can be imprisoned
           • 3. impracticable to serve summons
           • 4. reasonably suspect deportation
   • unlawful arrest
     • --> complain to CAPO
   • Offenses
     • resisting arrest (OAPO s.36)
     • assault/obstruct PO in execution of duty (PFO s.63)
   • info upon arrest
     • grounds of arrest
       • UNLESS delay-
         • D already knows reason
         • D creates situation = impossible to inform (i.e. resist)
         • giving reason = arrest more difficult to effect
       • BORO art.5(2): reasons + charges
       • non-technical language, D understands

3. After arrest

   • 1. delivered into police station's OFFICER-in-CHARGE's custody
     • PFO s.51: deliver to OIC forthwith
       • OIC - independent from police
         • complaints? (caution, aggressive handling, etc)
         • record
         • bail
       • "forthwith" - immediately, unless good reasons for delay
   • 2. discharge OR bring before JUDGE for trial (reasonable time)
     • BORO s.5(3), PFO s.52(1)
     • minor offense
       • release on police bail
     • serious offense, other reasons
       • conduct inquiries, ID parades
     • "reasonable time" = 48 Hr Rule
       • should bring suspect before magistrate within 48 hours after arrest
   • 3. SEARCH D + seize items
     • only seize items that PO reasonably suspects is of VALUE in INVESTIGATION of D's offense
     • PO who ordered search - must have REASONS
     • reasonable grounds for arrest - must still PERSIST

4. Identifying Particulars

   • PFO s.59 - PO (cause to) take samples for forensic analysis
     • intimate samples
       • PFO s.59A - i.e.
         • sample - blood, semen/tissue fluid, urine, saliva, body hair
           • urine <-- officer of same sex
         • dental impression
           • must be taken by registered dentist
         • swab from private part OR non-mouth orifice
           • only for - serious arrestable offenses (max penalty: 7+ years)
           • OR PFO sched.2 offense (criminal intimidation, 16- intercourse)
       • requirements
         • 1. magistrate approval
         • 2. D/guardian's consent (18-)
         • 3. superintendent+ written approval
           • reasonable grounds
             • suspect D committed serious arrestable offense
             • AND believe sample will tend to confirm/disprove offense
         • taken by registered medical practitioner
     • non-intimate samples
       • PFO s.59C - i.e.
         • photographs, finger/palm prints, weight/height, sole/toe imprints (if help investigation)
         • head hair
         • swab - nail, under nail, non-private body parts, mouth
           • buccal swab @ serious arrestable offense (PFO s.59E)
             • authorized by superintendent+
             • taken within 12mo of conviction
             • by trained officer
             • results put in DNA database
         • saliva
       • requirements:
         • same as NI sample
         • PO or trained Govt Lab public officer
         • use FORCE as is reasonably necessary --> take samples
     • PFO s.59D(4): cannot use IF charge: withdrawn, discharged, acquitted
       • ONLY for investigatory forensic analysis + trial purposes (59D/1)
   • afterwards, destroy or deliver to D - IF:
     • not charged (12mo) OR
     • court discharged/acquitted before conviction
     • UNLESS
       • D has previous conviction
       • OR subject to Removal Order

5. Enter premises --> Search + Seizure

   • Homes are inviolable (BL 29, BORO 14)
     • BUT
     • with warrant
       • PFO s.50(7)
         • reasonable cause
         • oath affirmation
         • seized items - describe + only used for investigation
     • without warrant
       • PFO s.50(3)
         • PO has REASON to believe that:
           • a person to be arrested
             • entered into/is in the place
               • PFO s.50(4): no one lets PO in
                 • PO obtain warrant --> break in to arrest
                   • + search D
                   • + seize any article/chattel found on D/in place of arrest
                     • PO REASONABLY suspects will be of VALUE to ANY investigation (50/6)
                     • put in envelope --> judge decide if LPP
                   • UNLESS impracticable to obtain warrant from magistrate

6. Question persons

   • Li Wai Ming: PO has RIGHT/DUTY to question persons he believes may assist him in investigation of crime
     • BUT
       • Right to silence/against self-incrimination
         • cannot amount to admission or reflect guilty conscience --> can't be used against him in any way
           • reminded in CAUTION
             • “You are not obliged to say anything unless you wish to do so but whatever you say may be put into writing and given in evidence.”
             • RP rule II:
               • when PO has evidence = reasonable grounds to suspect D committed offense
                 • CAUTION
                   • ask further questions relating to offense
                   • contemporaneous record: time, place, persons present
                 • Fung Wing Ching
                   • D was stopped and searched by police, they found a packet of white powder
                     • he said he has “ice” and said he had more at home
                       • Police: “are you willing to confirm you’re taking us to your home”? D said yes
                       • should have administered caution here
                         • difference not huge - he already admitted to possession of drug
               • when charging D with offense
                 • only exceptional qs asked after charging
                   • 1. necessary --> prevent harm/loss to V/public
                   • 2. clear up ambiguity in previous answer
                   • ^ further caution
         • BORO 11
       • No hearsay evidence
         • A tells a court what B has told him and that what A tells is used to prove the facts
           • no oath for B's statement
           • Court can't assess B's demeanor/credibility
           • can't cross-examine B
           • D can't confront B in court
         • EXCEPT admissions and confessions by D that incriminate him
           • CREDIT <-- presumed to flow from the strongest sense of guilt
             • inherently RELIABLE as a person would not normally say things against his own self interest unless true
           • made to Person in Authority
           • Inadmissible, UNLESS P proves:
             • 1. made voluntarily
               • NOT by fear of prejudice or hope of advantage by person in authority
             • 2. not by oppression
               • "oppression" = person in authority --> conduct --> saps D's will --> makes statement
                 • Lam Tat Ming - Consider:
                   • length of interrogation
                   • intervals
                   • shouting/insulting
                   • unwarranted detention, long period
                   • No contact with lawyer, friends, family
             • 3. not by fraudulent misrepresentation
               • Seraj Ajodha
                 • Police wrote admission, asked D to sign (told him it was an innocuous procedural matter). Fraudulent misrepresentation
             • UNLESS discretionary exclusion
               • Judge has discretion to exclude admissible evidence when considered necessary to secure fair trial for D