Your Rights if Arrested in Hong Kong

Introduction

A person arrested in Hong Kong holds a set of legal rights drawn from the Basic Law, the Hong Kong Bill of Rights Ordinance, the Police Force Ordinance, the Criminal Procedure Ordinance, and the common law. These rights are not forfeited on arrest — the arrested person remains an unconvicted person, protected by the presumption of innocence.

This article describes, in general terms, the power to arrest held by the police (and comparable law enforcement bodies), the principal rights of an arrested person, the police's corresponding duties, and the 48-hour detention rule. This article does not provide advice on any specific matter — anyone facing criminal process should consult a qualified Hong Kong criminal solicitor.

Basis for Arrest Powers

A police officer may arrest a person in two circumstances: with a warrant or without a warrant.

Arrest without warrant is grounded in the Police Force Ordinance. A police officer may arrest where there is reasonable suspicion that the person has committed an offence. "Reasonable suspicion" is judged objectively — the question is whether the information the officer had at the time of arrest was sufficient for a reasonable person to draw the same conclusion. A mere hunch, or a bias against a class or group, does not meet the standard.

Arrest with warrant proceeds from a warrant issued by a magistrate under the Magistrates Ordinance, which the officer executes.

Beyond the police, other enforcement bodies have comparable arrest powers under specific statutes:

• Independent Commission Against Corruption (ICAC) — under the ICAC Ordinance and the Prevention of Bribery Ordinance, for corruption-related offences
• Customs and Excise Department — under the Customs and Excise Service Ordinance, for import/export, duty, intellectual property, and false trade description offences
• Immigration Department — under the Immigration Ordinance, for immigration-related offences
• Securities and Futures Commission (SFC) — does not itself hold arrest power, but has compulsion powers (to require answers, to compel production of documents) and can work with the police where arrest is needed

Key Rights of an Arrested Person

1. Right to Be Informed of the Reason for Arrest

A police officer arresting a person must inform the arrested person of the reason in terms the person can understand. The explanation should be in plain, non-technical language. A failure to do so may render the arrest unlawful, even where the underlying offence did occur. This right flows from Article 28 of the Basic Law and the common law.

In limited circumstances where the arrested person actively resists or attempts to flee, so that the officer cannot give the reason at the time, the duty may be deferred — but the reason must be given as soon as practicable.

2. Right to Silence

An arrested person has the right to silence — the right not to be compelled to make statements incriminating themselves. This right is protected by the Hong Kong Bill of Rights Ordinance, the Basic Law, and the common law. Before questioning, the police administer a caution:

The caution captures the right's essence: there is no legal duty to answer police questions. Even where the person elects to answer, they may stop at any time. Silence itself cannot be taken by the court as evidence of guilt.

The right is, however, not absolute:

• Proof of identity. Police officers may require a person to produce proof of identity under the Immigration Ordinance. Refusing to produce identification can itself be an offence.
• Specific statutory disclosure duties. Certain statutes (for example, the Prevention of Bribery Ordinance, the Securities and Futures Ordinance, and asset-declaration provisions under the Dangerous Drugs Ordinance) impose mandatory disclosure duties. Breaching those is a criminal offence. Answers given under compulsion are usually protected from use in later criminal proceedings against the same person (protection against self-incrimination).
• Legal aid applications. Bodies handling legal aid may require financial disclosures; refusal may affect eligibility.

3. Right to Legal Representation

An arrested person has the right to engage a solicitor as soon as practicable. This right is established by the Hong Kong Bill of Rights Ordinance, the Police General Orders, and the common law, and specifically includes:

• The right to contact a solicitor after arrest (particularly before questioning begins)
• The right to have the solicitor present during questioning (or to decline to answer until the solicitor arrives)
• The right to meet and speak with the solicitor privately and confidentially — protected by legal professional privilege

Improper delay or obstruction of contact with a solicitor can affect the admissibility of evidence subsequently obtained. Case law has developed the consequences of police breach of this duty.

Those unable to afford a solicitor may apply to the Legal Aid Department for legal aid, or turn to the Duty Lawyer Service. The Duty Lawyer Service provides free first legal consultation and representation for arrested persons and defendants at police stations and in court, subject to a means and merits test.

4. Right to Have a Family Member or Other Person Notified

While detained at a police station, the arrested person has the right to notify one family member or friend of the place of detention (unless the police have reasonable grounds to delay the notification — for example, a belief that notification would prejudice the investigation). Any delay must be specifically justified; it cannot be a matter of routine.

5. Right to Reasonable Treatment

An arrested person has the right to reasonable treatment during detention, including:

• Provision of food, water, and basic hygiene
• Necessary medical attention where health requires it
• Translation services in appropriate cases (for persons not proficient in Chinese or English)
• Freedom from torture, cruel, inhuman, or degrading treatment (Basic Law protections and the Convention Against Torture, applicable in Hong Kong)

Breach of these rights may constitute misuse of public power. Complaints may be made subsequently (to the Police's Complaints Against Police Office, or to the Independent Police Complaints Council / IPCC), or remedies may be pursued through the courts.

The 48-Hour Rule

As a general rule under the Police Force Ordinance, an arrested person must be brought before a magistrate's court as soon as practicable, and in any event within 48 hours of arrest, unless:

• The person is released on police bail (see bail-hong-kong)
• The person is released unconditionally; or
• The person is en route to a magistrate and 48 hours expires in transit

This "48-hour rule" flows from Article 28 of the Basic Law (prohibiting arbitrary detention) and international human rights standards. It is one of the cornerstones of Hong Kong criminal procedure. In an ordinary criminal matter, if the police continue to detain a person beyond 48 hours without one of the above dispositions, the detention may be unlawful and the detained person may apply to the court for release through a habeas corpus application.

Certain specialised areas of Hong Kong criminal law may have different detention periods or procedural rules. A person arrested in connection with such a specialised area should consult a solicitor experienced in that field as soon as possible.

If the Police Breach These Rights

Possible consequences include:

• Inadmissibility of statements — where caution was not given, solicitor access was improperly delayed, or meetings were monitored, statements given to police may be ruled inadmissible in evidence
• Abuse of process — serious procedural breaches may amount to an abuse of process, with power in exceptional cases for the court to stay proceedings
• Civil remedies — claims for unlawful arrest, false imprisonment, and assault may be brought against the officers or the government
• Complaints — to the Police's Complaints Against Police Office (CAPO) or the Independent Police Complaints Council (IPCC)
• Disciplinary action — officers in breach of Police General Orders may face disciplinary or criminal proceedings