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‘You have the right to remain silent. Anything you say, can and will be used against you in a court of law’.
Anyone who has ever watched police dramas and movies like Brooklyn Nine-Nine, Rush Hour, Die Hard, or just film and TV in general, will likely be able to recite these two sentences by heart.
The two sentences are part of the Miranda Rights, a warning given primarily by American police that was established after the US Supreme Court’s 1966 decision in Miranda v. Arizona. However, don’t be surprised if this is not heard verbatim around Hong Kong, the UK or Germany. What is heard in US films and TV shows is specific to the US system!
So, what is it like in Hong Kong?
Author: Stefan Schmierer, Managing Partner, co-authored by Vienna Kwan, Intern
Under what circumstances can someone be arrested?
Someone can either be arrested with a warrant or without a warrant. A warrant can be issued by a magistrate under section 31,72, 73.74 of the Magistrate’s Ordinance.
To obtain a warrant, it must be supported by evidence on oath in front of a magistrate that demonstrates that an indictable offense was committed by an individual who is not in police custody. The Police Force Ordinance section 53 requires the officer to show the warrant to the arrested individual at the time of arrest or as soon as is practical.
In cases where a warrant is not needed, section 50(1) of the Police Force Ordinance takes effect if the police officer reasonably suspects the person to be guilty of an offense. ‘Reasonable suspicion’ is to be measured objectively by the information possessed by the officer at the time of the arrest.
What are the legal rights of someone getting arrested?
The individual has the right to be informed by the police officer of the reason of arrest. It must be explained in a way that is understandable and non-technical. If the officer fails to tell the arrested person the reason, the arrest can be deemed unlawful. However, a circumstance where the officer may not immediately inform the arrested person the reason of arrest can occur if, for example, the person fails to comply with the arrest.
Like the movies, the arrestee does have the right to remain silent. However, the caution statement is a little bit different and a larger mouthful in Hong Kong. The Rules and Directions for the Questioning of Suspects and the Taking of Statements reads that “the arrestee is not obliged to say anything unless they wish to do so, but whatever they say will be put into writing and may be given in evidence”.
It is also important to note that, according to section 101A of the Criminal Procedure Ordinance, the officer making the arrest can use reasonable force, depending on the circumstances, such as the use of handcuffs to restrain an individual.
How does the arrestee find a lawyer if arrested?
The arrested person is eligible to ask the police for a list of solicitors to consult, as the police has a duty to provide that list. Under normal circumstances, the arrestee will be allowed to call the solicitor of their choice by using the telephone in the police station, but usually not their mobile phone. The arrestee also has the right to have a lawyer present during any interview with the police as well as the right to wait with your statement until the lawyer arrives.
Free legal services are only available after the arrestee is charged with an offense and brought before the court. Such legal services include the Legal Aid Scheme and the Duty Lawyer Service. The Duty Lawyer Service to obtain free legal representation can be applied at the first hearing at a Magistrate’s Court. At the District Court or Court of First Instance, the arrested individual can apply through the Legal Aid Department.
What are the consequences of resisting arrest?
Under section 36 of Offences against the Person Ordinance, it is considered an offense for a person to assault, resist or deliberately obstruct the police during the execution of an arrest. This offense can be tried summarily or upon indictment, with the maximum penalty being up to 2 years in prison.
What should the arrested person do if they believe they were wrongfully arrested?
The Police Officer will inform the arrested of the offense or crime they are suspected of committing in non-technical language that is easily understandable. The next step is to seek independent legal advice on whether a potential complaint of wrongful arrest can be filed to the Complaints Against Police Officers, a unit within the Hong Kong Police Force. It is possible to seek compensation through civil actions.
What are the procedures after being arrested?
As seen in section 51 of the Police Force Ordinance, the individual will be brought to the police station and the Duty Officer will examine the reasons for arrests. There are 2 possible outcomes.
If the Duty Officer is not satisfied with the legality of the arrest, a release will be ordered. Alternatively, if it is deemed a lawful arrest, the arrestee will be registered as being arrested, photographed for identification and fingerprints will be retrieved.
How do criminal records in Hong Kong work?
Regarding the permanence of arrest records, while processes for sealing or expunging certain criminal records exist, the ability to remove an arrest record completely is limited. Legal advice should be sought by individuals concerning applications for expungement of criminal records.
If convicted, the individual will have a criminal record regardless of what penalty is imposed. Typically, the criminal record remains with the offender permanently and cannot be deleted.
If the arrest is deemed unlawful by the Duty Officer, the arrest record is usually still maintained and traceable by name. When a person is arrested, they are registered in the police system. The registration will entail taking their photograph and fingerprints for the police records. Consequently, while the individual may not be charged, the occurrence of the arrest will still be documented. Thus, individuals should be aware that an arrest record may exist even if the arrest itself is dismissed as unlawful.
However, a charged individual who has not previously committed any offense and is not sentenced to imprisonment exceeding 3 months or a fine exceeding $10,000 HKD, will be considered to have a ‘spent’ conviction record. This means that the person, in general, should be regarded as not having been convicted of the offense, subject to exceptions.
What if the arrested person is a minor?
According to the general orders, when a minor is arrested, police officers will take the initiative to inform the minor’s parents or guardian in order to request an appropriate adult to be at the station.
Criminal offenses committed by individuals aged 16 to 18 are dealt with by adult courts. However, unless it is viewed that the offense committed is one that can only be handled by imprisonment, individuals aged 16 to 18 shall not be sentenced to imprisonment. This is because legal proceedings against a child typically focus on long term reform and rehabilitation. If a person under 16 years of age is sent to prison, they are kept separate from adult prisoners.
Individuals under 16 years of age are dealt with by the Juvenile Court, established by section 3A of the Juvenile Offenders Ordinance (JOO). Other than charges of homicide, the Juvenile Court has jurisdiction over charges against an individual aged 16 years or less.
The JOO also establishes that a person under 10 years of age cannot commit a criminal offense.
Key Takeaway: always seek legal advice and wait for legal counsel to arrive
While we should be thankful that cop movies have inadvertently prepared us with some knowledge of our arrest rights, it’s important to not completely rely on it. Always seek legal advice in situations involving any of the conditions described above and wait for legal counsel to arrive before making any statements.
Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.
For specific advice about your situation, please contact:
Managing Partner
+852 2388 3899
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