Police Demands for Hong Kong Identity Cards
February 8, 2013
The common law allows arrests by police officers for alleged offenses. Police officers are prohibited from arresting persons for the purpose of identification.
Under the Hong Kong Immigration Ordinance, an authorized governmental employee has unlimited authority to 'stop' (i.e., arrest) any person, at any time, and to demand production of proof of identity.
There are several classes of authorized governmental employees, and there are several types of approved proof of identity. Usually, police officers make identity-card 'stops,' and, usually, Hong Kong identity cards are produced by 'stopped' persons. But for the Immigration Ordinance, which changed the common law in Hong Kong, there could not identity-card 'stops' in Hong Kong.
The Immigration Ordinance does not guide police officers in the exercise of their discretion to 'stop' persons, and 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 actualizing his own preferences, rather than actualizing the law.
For police officers, however, there is an in-house standard of the Hong Kong Police Force. First and foremost, teenage Chinese, mostly males, about 20% females, will be 'stopped.' Under color 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, to apply for and possess an identity card, is now a permanent requirement to apply for and possess an identity card, to carry it in public, and display it for no reason at all.
See also “How to Interpret, and Not Interpret, the Basic Law of Hong Kong,” posted on the SSRN.
Number of Pages in PDF File: 18
Keywords: arbitrary, arrest, Basic Law, capricious, due process, freedom of movement, identification card, identity card, Law Reform Commission, stop
JEL Classification: K14, K42working papers series
Date posted: August 15, 2009 ; Last revised: September 4, 2013
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