Police Demands for Hong Kong Identity Cards
August 1, 2014
The common law allows arrests by police officers. They are prohibited, at the common law, from arresting persons for the purpose of identifying themselves.
Under the Hong Kong Immigration Ordinance, an authorised governmental employee has unlimited authority to demand that any person, at any time, ‘stop,’ and produce proof of identity. The term ‘stop’ is used in relation to the Immigration Ordinance, although a halting of a person by dint of official authority is an arrest.
There are several classes of authorised governmental employees, and there are several types of approved proofs of identity. Usually, it is a police officer who makes an identity-card ‘stop,’ and, usually, it is a Hong Kong identity card which is produced by a ‘stopped’ person. But for the Immigration Ordinance, which changed the common law in Hong Kong, there could not be identity-card ‘stops’ in Hong Kong.
The Immigration Ordinance does not guide the authorised governmental employees in the exercise of their discretion to ‘stop’ persons, and to demand production of identity cards. That is contrary to due course of law. When a public official exercises discretion, it must be exercised within legislative guidelines. Otherwise, a public official is actualising his own preferences, rather than actualising the law.
For police officers, there is the in-house standard of the Hong Kong Police Force. First and foremost, teenage Chinese, mostly males, about 20% females, will be ‘stopped.’ Under colour of the Immigration Ordinance, iron-hand social control is effected.
For the public at large, the Rule of Law is undercut by ‘stops,’ in that the Immigration Ordinance does not give to Hong Kong residents notice of when and why they will be ‘stopped’ by police officers. The Rule of Law prohibits ad-hoc official action.
History shows that Hong Kong identity cards were subject to mission creep. What began as a temporary measure in 1949 is now a permanent requirement.
See also ‘How to Interpret, and Not Interpret, the Basic Law of Hong Kong.’ http://ssrn.com/abstract=1451237
Number of Pages in PDF File: 17
Keywords: arbitrary, Bill of Rights, capricious, due process, freedom of movement, identification card, identity card, Law Reform Commission
JEL Classification: K14, K42
Date posted: August 15, 2009 ; Last revised: August 1, 2014
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