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警員行使權力前 請想想「良心究竟是什麼」

2015/5/18 — 9:13

資料圖片:被錯誤拘捕智障男子

資料圖片:被錯誤拘捕智障男子

【法政匯思短評:關於近日警察處理一名智障人士疑犯的事故】

THE PROGRESSIVE LAWYERS GROUP’S SHORT COMMENTARY REGARDING A RECENT CASE INVOLVING THE POLICE'S HANDLING OF AN INTELLECTUALLY DISABLED SUSPECT

警方於5月2日拘捕一名中度智障男子,懷疑他涉嫌一宗老翁謀殺案。警方隨後在未有家屬未及到場陪同的情況下,為這名智障男子筆錄口供。根據警方提供給家屬的筆錄口供,該名智障男子向警方承認不滿老翁放狗,並將他推倒在地,更表示其後於電視得悉該老翁死亡。其後,家屬於5月13日向傳媒公開有家屬在場時的錄影證供,顯示該智障男子的回答與筆錄口供有極大的出入。從影片的文字記錄可見,該智障男子根本不能如筆錄口供般流暢回應警員的問題。然而警員為獲取該智障男子供認有關指控罪行,不但沒有一字一句及如實地紀錄該智障男子的說話,更涉嫌以引導性問題誘導他認罪。幸好該智障男子入住的院舍及時提供閉路電視片段,證實該智障男子有不在場證據,才得以重獲自由。

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修訂規定及指引刻不容緩

環顧這事件,其實制度上亦有必須改善的空間。基本法第35條賦予香港居民獲得法律諮詢和選擇律師及時保護自己的合法權益的權利。當特別需要人士,例如未成年人或智障人士被警方帶回警署扣查時,他們是特別需要有律師在場確保他們的法律權利不受侵犯。除非疑犯有資源及準備可自行聘請律師立即到警署作法律探訪外,一般疑犯只會由警方告知他有權獲得法律支援。除非疑犯作出要求,警方亦不會主動向疑犯提供執業律師名冊。可想而知有特別需要人士的基本法第35條權利是否真的能得到妥善保障實在令人疑慮。

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英國於 2014 年 6 月2 日,修訂了有關警方如何處理無行為能力人士的指引。指引要求警方決定拘禁無行為能力人士時必須儘快通知一名「合適成人」前來與該無行為能力人士會面。警方在錄取口供、進行搜身或起訴時也必須有該名「合適成人」在場,方能進行。「合適成人」包括該無行為能力人士的成年家屬或一名非警務人員的成年人士。指引要求有第三者在場目的就是要保障無行為能力人士的權利及確保所有程序都在符合公義的情況下進行。

於2012年12月19日,保安局局長黎棟國於立法會會議上回應張國柱議員的提問時,就提及警務人員在為精神上無行為能力的人士進行查詢及錄取口供時,必須遵守警方的內部指引。他指出,有關指引要求警方應盡量安排一名合適的成人在場。很明顯,警方於此次事件中,完全沒有遵從有關的內部指引。由於該指引未有於《警察通例》及《向可疑人查問及錄取口供規定及指引》列明,公眾無從得知其內容,更無從監察警方有否遵循相關的指引。

因此,警方必須立即檢視並公開相關的政策及調查工作指引,確保類似事件不再發生,以挽回警隊所剩無幾的尊嚴。事實上,警方在其「抱歉」聲明內,亦強調「會重新檢視處理涉及精神上無行為能力人士案件的政策及調查工作的指引」,變相承認了警方在此方面的嚴重不足。政府及有關方面亦應積極考慮把當值律師服務的服務範圍伸展至為無行為能力人士提供免費的法律探訪服務,確保該等人士在被拘留及接受調查時的權利得到保障。

「良心究竟是什麼?」

前警務處處長曾偉雄曾在公開場合講過:「良心究竟是甚麼?」又說用良心來批評警員執法非常「危險」,因不同人對良心有不同定義,曾甚至自認「有人可能認為我無良心」。但良心是否真的沒有一個普世標準?事實上,這次事件引起公眾極大的迴響及憤怒,說明了惻隱之心人皆有之,而警員的良心跟公眾的良心難道不應該是相同的嗎?警方又何忍泯滅良心,利用他們的權力逼迫弱勢人士呢?而整件事件最使人忐忑不安的是: 要不是今次幸運地有院舍職員快速地提供不在場證據,以及有議員仗義幫忙,這位無辜的被捕者,很大可能會因為自己的「招認」,至今仍失去自由。

當公義無法彰顯,當無辜的人受到迫害,絕非單單一句「抱歉」或「祝福」就能作罷。事實上,精神上無行為能力的人士未必明白自己面對警方調查時有什麼權利,如何保障自己也就無從談起。所以警方的專業判斷至為重要。此次事件正好暴露了警方前線人員嚴重缺乏處理有特別需要人士的能力和敏感度。要知道,警務人員不只是打份工那麼簡單。社會賦予你們的是除暴安良的權力、是維護法紀的權力、是保護市民的權力,警方行使這些權力時,請想想「良心究竟是什麼」。

法政匯思 2015年5月17日

On 2 May, the Police arrested a man with moderate intellectual disability on suspicion of his involvement in the murder of an old man. Subsequently, the Police took a written statement from the intellectually disabled man before his family members arrived to accompany him. According to the written statement which was provided by the Police to the man’s family members, the intellectually disabled man admitted to the Police that he pushed the old man onto the ground because he was unhappy that the old man was walking his dog. He also indicated that he subsequently learned from television that the old man died. Later, on 13 May, the family members disclosed to the press the video recording of the interview conducted by the Police in the presence of the family members. The video shows great discrepancies between the answers given by the intellectually disabled man in the video interview and in the written statement. As seen from the transcript of the video recording, the intellectually disabled man was simply unable to answer the Police’s questions as smoothly as recorded in the written statement. However, in order to obtain a confession of the relevant crime, the police officers not only did not record the conversations with the intellectually disabled man with word for word accuracy, they are also suspected of asking leading questions to induce the man to confess. Fortunately, the staff of the nursing home where the intellectually disabled man stayed timely provided the relevant CCTV footage that proved his alibi and he was then set free.

Revision of rules and guidelines is of utmost urgency

This incident shows that there is indeed room for improvement in the system. Article 35 of the Basic Law endows Hong Kong residents the rights to obtain legal consultation and the choice of lawyers to timely protect his lawful rights and interests. When persons with special needs, such as minors or persons who are mentally vulnerable, are taken to a police station for detention, they are especially in need of a lawyer to be present to ensure that their legal rights and interests are not violated. Unless the suspect has the resources and is prepared to engage a lawyer by himself to conduct legal visit at the police station immediately, in general he would only be informed by police of his right to legal assistance. The Police will not voluntarily provide a list of practising lawyers to the suspects unless so requested. It goes without saying that whether the rights of a person with special needs under Article 35 of the Basic Law can be properly safeguarded is a matter of real concern.

On 2 June 2014, the code of practice for the police in handling mentally vulnerable persons was revised in the United Kingdom. The revised code provides that when the police decide to detain a mentally vulnerable person, they must as soon as possible notify an “appropriate adult” to meet with the mentally vulnerable person at the place of detention. The police can only take statement, search or charge such mentally vulnerable person in the presence of the “appropriate adult”. “Appropriate adult” includes an adult relative of the mentally vulnerable person or an adult who is not a police officer or employed by the police. The requirement of the presence of a third party is to protect the rights of the mentally vulnerable person and to ensure all procedures are conducted in compliance with natural justice.

In reply to a question raised by legislator Mr Cheung Kwok-che in the Legislative Council meeting on 19 December 2012, Security for Security Mr Lai Tung Kwok mentioned that police officers shall follow internal guidelines when conducting enquiries with or taking statements from mentally vulnerable persons. He indicated that the relevant guidelines require police officers to arrange for a mentally vulnerable person to be questioned or interviewed in the presence of an appropriate adult as far as practicable. Obviously, the Police did not follow the relevant internal guidelines in this incident. As such internal guidelines are neither included in the Police General Orders nor the Rules and Directions for the Questioning of Suspects and the Taking of Statements, their contents are not available to the public and hence the public has no means to monitor whether the police have complied with the relevant guidelines.

As such, the Police must, without delay, review and make public all relevant investigation policies and guidelines in order to ensure that there is no recurrence of similar incidents and to save the little dignity that the Police have left. In fact, the Police in their statement of “sorry” have emphasised that they would review the policy for handling mentally vulnerable persons and related investigation guidelines, which is an admission of their serious deficiencies in this area in disguise. The government and other relevant parties should also actively consider extending the scope of services of The Duty Lawyer Service to provide free legal visits for mentally vulnerable persons, to ensure that their rights and interests would be protected when being detained and investigated.

“What, exactly, is conscience?

The former Commissioner of Police Mr Andy Tsang Wai-hung once said in a public event “What, exactly, is conscience?”. He also said it was very dangerous to accuse police officers of lacking conscience in carrying out law enforcement duties as different people would have different interpretations of “conscience”. He even admitted that some people might think that he did not have any conscience. However, is it true that there is no universal standard of conscience? The fact that this incident has sparked off wide public discontent and anger demonstrates that every person has empathy. Is it not true that the conscience of police officers should be the same as the conscience of the public? How can the police act against their conscience and supress vulnerable persons with their power? The most disturbing element of the whole incident is that had it not been for the swift action of the nursing home staff in providing the alibi and the assistance of a legislative councillor, this innocent person could possibly still be in custody now, due to his “confession”.

When justice cannot be upheld and innocent persons are being persecuted, this by no means can be relinquished by the Police saying “sorry” or giving “blessings”. In fact, a mentally vulnerable person may not be able to understand his rights when facing police’s investigation, let alone how to protect himself. Police officers’ professional judgment in the circumstances is therefore of utmost importance. This incident just happened to expose the serious lack of ability and sensitivity by police officers in handling persons with special needs. Police officers must know that they are not simply performing a job. They are entrusted by members of the society with the powers to bring criminals to justice, to uphold law and order and to protect the citizens. When exercising such powers, police officers should think carefully “what, exactly, is conscience”.

Progressive Lawyers Group 17 May 2015

(標題由編輯所擬)

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