Black Hole

A black hole is a region of space time where gravity is so strong that nothing, including light and other electromagnetic waves, has enough energy to escape it. The existence of such a phenomenon was first speculated in the 18th century by an astronomical pioneer John Michell. I wonder what he would say if informed that Hong Kong had created a new one in our policing procedures. I am referring of course to the system of granting police bail as provided under section 52 of the Police Force Ordinance.

When an individual is arrested he is being deprived of a measure of freedom. He is being stopped from going about his normal life (from the French “arreter” meaning to stop). Such an act is therefore very serious in Hong Kong or any other common law jurisdiction for that individual, but can be justified in the wider public interest if there are strong grounds for suspecting the arrested person is involved in a crime.

There are several possibilities for what happens next. The most straightforward is if the evidence already in police possession is sufficient to justify immediate laying of charges against the individual. Then the prisoner must be brought before a court of law within a reasonable time (generally 48 hours) and a member of our independent judiciary takes over monitoring of the case. The accused may apply for bail, the prosecution can object on various grounds such as seriousness of the charge, weight of evidence, likelihood of the accused absconding or interfering with witnesses etc. Almost 50 years ago as a junior ICAC officer I used that last reason to justify bail refusal in a corruption case for which I was the arresting officer. The magistrate can then either order incarceration until the date of trial, or allow bail on such terms as he thinks reasonable. For persons arrested under the National Security Law, under Article 42 there is a presumption against bail unless the judge has sufficient grounds for believing the suspect or defendant will not continue to commit acts endangering national security.

There is another option if the evidence available is not sufficient to warrant immediate laying of charges, and that is allowing police bail. The officer in charge of a police station or authorised by the Commissioner for the purpose may allow the arrested person to walk free for the time being subject to his entering into a recognizance, with or without sureties, for a reasonable amount. The suspect must agree to report back to the police, or turn up at court, at a specified time. Various other restrictions can be imposed as a condition for granting bail, such as a requirement to report regularly to the accused’s local police station, surrender of travel documents, not permitted to leave Hong Kong etc.

Part 2 of Section 52 lists out the records that must be kept in cases of police bail. “The respective names, residences and occupations of the person so apprehended of his surety or sureties, if any, entering into such recognizance, together with the condition thereof and the sums respectively acknowledged, shall be entered in a book to be kept for that purpose…” It would be normal also to include the name and contact details of the case officer, the suspected offence, and the date of arrest. Each time the accused turns up to report, the record has to be updated to show the date and time of the next deadline.

There are a number of interesting aspects of the police bail system, but two in particular catch the eye. The first is that the suspect is not obliged to accept the offer of police bail. He can say “No, I am not entering into any recognizance or putting up any security. Charge me or let me go”. There have been a number of such cases in recent years. This can be a risky bluff on the part of the suspect as it might incentivise the case officer (who may be dealing with several cases in parallel) to give priority to his.

The second is that the law does not specify any time limit before the police must finish deliberation and declare that they have enough evidence to charge the individual, or to accept that the evidence just isn’t there and discharge the person from bail requirements. It is accepted that there are legitimate reasons for keeping people on police bail for a period of time: to get medical advice on precise cause of death; forensic advice on some of the material evidence; legal advice on the appropriate charge; investigating the case further to see what can be added to the original evidence which justified the original arrest etc. The question is what amount of time is reasonable.

My interest in the subject was generated by reports emerging of suspects being on police bail for very long periods, in some cases several years. That seemed absurd. The mental pressure of partial deprivation of liberty for such a long time was a form of punishment for people not yet convicted of any crime. So I consulted retired policemen and senior counsel known for their conservative approach. The consensus was that anything more than a year could not be justified. So I filed a question with PPRB. The exact words were “Please advise how many persons, as at 1 December 2023, had been on police bail for more than one year since their original arrest without charges being laid.”

On the next working day, after thanking me for my enquiry came the police reply “Police do not maintain the requested figure.”

Admirably quick response, admirably concise and admirably clear. But alas not correct. All those books maintained under part 2 of Section 52 contain the information, it just hasn’t been collated. No light out? The police have created a black hole.