Your Rights if Arrested in Hong Kong

The short version

If you are at a police station, or someone you know is, these are the points this article sets out:

• Declining to answer police questions is not generally in itself an offence. Hong Kong Bill of Rights Article 11(2)(g) provides the right "not to be compelled to testify against himself or to confess guilt" — but Article 11(2) opens with "In the determination of any criminal charge against him", so its text addresses a person charged. For a person arrested but not charged the right of silence at a police station rests on the common law (see "The right to silence" below), and individual Ordinances create exceptions requiring disclosure.
• The police must tell you why you are being arrested, at the time. Article 5(2): "Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him."
• The Police Force Ordinance fixes no "48 hour" ceiling for an ordinary arrest — but Hong Kong law does fix 48 hours in several places, each belonging to a different regime. The standard in Cap. 232 section 52(1) is that you must be brought before a magistrate "as soon as practicable", and that section fixes no general time limit. Separately, section 10A(6) of the ICAC Ordinance (Cap. 204) fixes 48 hours for a person detained at the Commission's offices, and sections 26, 32(1)(a), 34(a) and 54(4) of the Immigration Ordinance (Cap. 115) fix 48 hours for inquiry, removal, post-arrest enquiries, and arrest for breach of a condition suspending a deportation order, respectively. So the figure is real; it just does not belong to ordinary police arrest. See "How long before a magistrate" below.
• You have a right to communicate with a lawyer. Its constitutional footing is Article 11(2)(b), whose opening words confine it to "In the determination of any criminal charge against him".

The Bill of Rights has its own exceptions, and this article states them

The Hong Kong Bill of Rights Ordinance (Cap. 383) is not only the Bill of Rights. Section 2(2) is explicit: "The Bill of Rights is subject to Part III." Part III ("Exceptions and Savings", sections 9 to 14) directly affects the practical reach of several guarantees relied on below, so it is set out here. Section 5 is not in Part III — it sits in Part I ("Preliminary", sections 1 to 7) — but it likewise limits the Bill of Rights, so it is included. (Two different things should be kept apart: section 5 is a provision of the Ordinance, in Part I; the Article 5 relied on in this article — liberty and security of person — is set out in section 8, which is Part II, "The Hong Kong Bill of Rights".) Note also that not every section of the Ordinance became part of the law of the HKSAR: the text carries the marking "Not adopted as the Laws of the HKSAR" against section 2(3), section 3(1) and (2), and the whole of section 4. This article states only what the text of the Bill of Rights in section 8 provides, and makes no claim about the route by which these guarantees bind today (see "Matters this article does not address", item 3).

• [Statute] Section 9 (Armed forces and persons detained in penal establishments): "…persons lawfully detained in penal establishments of whatever character are subject to such restrictions as may from time to time be authorized by law for the preservation of service and custodial discipline."
• [Statute] Section 10 (Juveniles under detention): "Where at any time there is a lack of suitable prison facilities or where the mixing of adults and juveniles is mutually beneficial, article 6(2)(b) and (3) does not require juveniles who are detained to be accommodated separately from adults." So the separation guarantee in Article 6(2)(b), quoted below, is itself qualified by this section.
• [Statute] Section 11 (Immigration legislation): "As regards persons not having the right to enter and remain in Hong Kong, this Ordinance does not affect any immigration legislation governing entry into, stay in and departure from Hong Kong, or the application of any such legislation." This bears on the deportation-related detention discussed below.
• [Statute] Section 5 (Public emergencies — in Part I, not Part III): the threshold is "In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed", when "measures may be taken derogating from the Bill of Rights to the extent strictly required by the exigencies of the situation, but these measures shall be taken in accordance with law". That closing limb — "but these measures shall be taken in accordance with law" — is itself a protection. Section 5(2) then sets three limits: no measure may (a) be "inconsistent with any obligation under international law that applies to Hong Kong (other than an obligation under the International Covenant on Civil and Political Rights)"; (b) involve "discrimination solely on the ground of race, colour, sex, language, religion or social origin"; or (c) derogate "from articles 2, 3, 4(1) and (2), 7, 12, 13 and 15". Of the four Articles this article relies on, Article 3 (torture and inhuman treatment, quoted under "Treatment in detention" below) is in that non-derogable list — it survives a proclaimed emergency. Articles 5, 6 and 11 are not in it, and may be derogated from.
• [Statute] Section 12 (Persons not having the right of abode): "Article 9 does not confer a right of review in respect of a decision to deport a person not having the right of abode in Hong Kong or a right to be represented for this purpose before the competent authority." This bears directly on the deportation-related detention discussed below.
• [Statute] Section 13 (Executive and Legislative Councils): "Article 21 does not require the establishment of an elected Executive or Legislative Council in Hong Kong."
• [Statute] Section 14 (Temporary savings) — listed so that Part III is set out completely; section 14(1) has run out on its own terms. The provision is "For a period of 1 year beginning on the commencement date, this Ordinance is subject to the Ordinances listed in the Schedule." Section 14(3) allowed the legislature, before the first anniversary of the commencement date, to extend that by resolution for one further year and to repeal the subsection. The commencement date on the face of the Ordinance is 8 June 1991, so the section 14(1) year expired on 8 June 1992 at the latest, and even a full section 14(3) extension would have run only to 8 June 1993. Section 14(2) is a separate, distinct savings rule, and it does not lapse on the same timetable: it provides that any act done, or any omission authorized or required, under an Ordinance listed in the Schedule, before the first anniversary of the commencement date, is unaffected by this Ordinance. That protects acts and omissions from before 8 June 1992, so its practical relevance today is limited to historical matters — but the provision itself has not simply "run out".
• [Statute] Section 7 (Binding effect of the Ordinance — in Part I): "This Ordinance binds only— (a) the Government and all public authorities; and (b) any person acting on behalf of the Government or a public authority." The consequence is concrete: the citizen's arrest under section 101(2) described below is an arrest by a private person, and by section 7 the Ordinance does not bind private persons, so the Bill of Rights does not apply to that arrest at all.

How this article labels its sources

The rights of an arrested person come from documents of different kinds, and confusing them has practical consequences: someone who thinks an administrative direction is a legal right will assert something at a police station that does not exist in law, and someone who thinks a legal right is mere practice will fail to assert one they actually have. Every rule below is therefore labelled:

• [Statute] — a provision of an Ordinance, for example the Police Force Ordinance (Cap. 232).
• [Bill of Rights] — a provision of the Hong Kong Bill of Rights, set out in section 8 of Cap. 383.
• [Common law] — a principle developed by the courts.
• [Administrative direction] — an instruction issued by the executive. It is not law, and a breach of it does not automatically make evidence inadmissible.

Statutory quotations in this English version are taken from the English authentic text; the Traditional Chinese version quotes the Chinese authentic text. Neither is a translation of the other. One convention in the quotations should be stated up front: the amendment source notes that the legislation carries inline within a provision (for example "(Amended 31 of 1987 s. 14)") are omitted without an ellipsis; every other omission is marked with "…".

The basis of the power to arrest

[Statute] Arrest without warrant. The power in section 50(1) of the Police Force Ordinance (Cap. 232) is narrower than is generally assumed. It provides that it "shall be lawful for any police officer to apprehend any person who he reasonably believes will be charged with or whom he reasonably suspects of being guilty of" — and then confines that to two categories:

• (a) "any offence for which the sentence is fixed by law or for which a person may (on a first conviction for that offence) be sentenced to imprisonment"; or
• (b) any offence, but only where "it appears to the police officer that service of a summons is impracticable because" the person's name is unknown and cannot readily be ascertained, or the officer has reasonable grounds to doubt the name given is real, or the person has failed to give a satisfactory address for service, or the officer has reasonable grounds to doubt the address given.

So not every offence carries a power of arrest without warrant under section 50(1): an offence punishable only by a fine, where a summons can be served, does not fall within that subsection.

But that is the reach of section 50(1), not a statement that no power of arrest exists. The same section contains a third arrest power. Section 50(1B): "It shall be lawful for any police officer to apprehend any person whom he reasonably suspects of being liable to deportation from Hong Kong." — a power that has nothing to do with the two categories in subsection (1).

And individual Ordinances create their own arrest powers, fine-only offence or not. The nearest example is one this article uses below: the offence in section 17C(3) of the Immigration Ordinance (Cap. 115) of failing to produce proof of identity is punishable by a fine at level 2 only, and section 17D(1) nevertheless confers a power of arrest without warrant (see "Where the right stops" below). So "you cannot be arrested for a fine-only offence" is not a thing that can be said generally.

Section 50(1A) provides that an officer may exercise the power "without any warrant for that purpose and whether or not he has seen any offence committed".

[Common law] The "reasonable suspicion" standard. Reasonable suspicion must have an objective basis; a hunch will not do, nor will an assumption drawn from a person's class or district. That is a principle developed by the courts, not the wording of section 50.

[Statute] Arrest with a warrant. Section 53 provides that a lawfully issued warrant "may be executed by any police officer at any time notwithstanding that the warrant is not in his possession at the time, but the warrant shall, on the demand of the person affected, be shown to him as soon as practicable after its execution." The officer not having the warrant on them does not invalidate the arrest; but on demand it must be shown as soon as practicable.

[Statute] Stop and search is not arrest. This is confused often in practice. Section 54 has two separate triggers, and the search powers they carry are materially different:

• Section 54(1) — where an officer finds a person "in any street or other public place, or on board any vessel, or in any conveyance, at any hour of the day or night" who "acts in a suspicious manner". The place limb is not just the street: vessels and conveyances are inside the subsection too, so a person stopped in a car, on a bus or on a ferry is within section 54. The officer may stop them, demand proof of identity, and "detain the person for a reasonable period" while enquiring whether they are suspected of an offence; but the power of search is confined to "to search the person for anything that may present a danger to the police officer".
• Section 54(2) — where the officer, in the same range of places ("in any street or other public place, or on board any vessel, or in any conveyance, at any hour of the day or night"), finds a person "whom he reasonably suspects of having committed or of being about to commit or of intending to commit any offence". Here the search power is much wider: "to search the person for anything that is likely to be of value (whether by itself or together with anything else) to the investigation of any offence that the person has committed, or is reasonably suspected of having committed or of being about to commit or of intending to commit;" — an evidential search.

The distinction matters to a reader: stopped on suspicious behaviour alone, what may be searched for is something dangerous to the officer; an evidential search requires the reasonable suspicion in subsection (2). Detention under section 54 is a brief detention for enquiry and search — it is not an arrest under section 50, and the legal consequences differ.

[Statute] Search on arrest. Section 50(6) provides that where a person is apprehended by a police officer, it is lawful for that officer "to search for and take possession of any newspaper, book or other document or any portion or extract therefrom and any other article or chattel which may be found on his person or in or about the place at which he has been apprehended and which the said officer may reasonably suspect to be of value (whether by itself or together with anything else) to the investigation of any offence that the person has committed or is reasonably suspected of having committed". It carries a proviso: "nothing in this subsection shall be construed in diminution of the powers of search conferred by any particular warrant."

Note the reach: the power follows the arrest, covers the person and the place at which he has been apprehended or its vicinity, and is bounded by whether the item may be of value to the investigation. It is a different power from the street stop-and-search in section 54.

[Statute] Entering premises to make the arrest. A reader whose home is entered is also inside section 50. Section 50(3): "If any police officer has reason to believe that any person to be arrested has entered into or is in any place the person residing in or in charge of such place shall on demand of that police officer allow him free ingress thereto and afford all reasonable facilities for search therein." Section 50(4) goes further: where ingress cannot be obtained under subsection (3), in the circumstances that subsection describes it is lawful "to break open any outer or inner door or window of any place whether that of the person to be arrested or of any other person", after notification of authority and purpose and a demand of admittance duly made. Section 50(5) permits an officer or other person authorized to make an arrest to break open any place in order to liberate himself or another person detained there after lawfully entering to make an arrest.

[Statute] Arrest by any person. Section 101(2) of the Criminal Procedure Ordinance (Cap. 221): "Any person may arrest without warrant any person whom he may reasonably suspect of being guilty of an arrestable offence." Section 101(5) requires a person making such an arrest, if not themselves a police officer, to deliver the arrested person to a police officer "in order that he may be conveyed as soon as reasonably may be before a magistrate, to be by him dealt with according to law" — or to "himself convey him before a magistrate, as soon as reasonably may be, for that purpose". The provision gives two routes, not one.

Section 101 is not only subsection (2). The two subsections an ordinary reader is most likely to meet in practice are these:

• Section 101(3) (property offered for sale, pawn or delivery): "Any person to whom any property is offered to be sold, pawned, or delivered, and who has reasonable ground to suspect that any arrestable offence has been or is about to be committed on or with respect to such property, may, and, if he can, shall, without warrant, apprehend the person offering the same and take possession of the property so offered." Note the wording — "may, and, if he can, shall" — so in that situation it is a duty, not merely a power. This is the shop and pawnshop case.
• Section 101(4) (finding a person in possession of suspected proceeds): "Every person who finds any person in possession of any property which he, on reasonable grounds, suspects to have been obtained by means of an arrestable offence may arrest such last-mentioned person without warrant and take possession of the property."

Section 101(6) then provides: "Nothing in this section shall affect the powers of apprehension conferred upon constables or other persons by any other enactment." — the section itself saying it is not the whole of the law of arrest, which is the doorway to Cap. 115 section 17D discussed under "Where the right stops" below.

[Statute] Force. Section 101A(1) of Cap. 221: "A person may use such force as is reasonable in the circumstances in the prevention of crime or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large." Section 50(2) of Cap. 232 separately provides that where "any person who may lawfully be apprehended under subsection (1) or (1B) forcibly resists the endeavour to arrest him or attempts to evade the arrest, a police officer or other person may use all means necessary to effect the arrest." Note that section 50(2) is confined to arrests under subsections (1) and (1B) — it does not apply to every lawful arrest.

Do not label this one [Common law]. Section 101A(2) provides: "Subsection (1) shall replace the rules of the common law on the question when force used for a purpose mentioned in the subsection is justified by that purpose." So on the question when force used for a purpose mentioned in section 101A(1) is justified by that purpose, the common law rules have been replaced by statute, and this article labels the use of force [Statute] rather than [Common law] accordingly.

Other enforcement bodies each have their own statutory basis — the ICAC under the ICAC Ordinance (Cap. 204) and the Prevention of Bribery Ordinance (Cap. 201); the Securities and Futures Commission exercises compulsion powers under the Securities and Futures Ordinance (Cap. 571). Their powers and safeguards differ from each other; see ICAC and SFC investigations .

The principal rights of an arrested person

[Bill of Rights] Start with Article 5(1), which governs everything below it. "Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law." Three things in one paragraph: the right to liberty and security of person, the prohibition on arbitrary arrest or detention, and the requirement that any deprivation of liberty be on grounds and by a procedure established by law. Every provision set out under "The basis of the power to arrest" above is what "established by law" refers to; an arrest that falls within none of them is not merely irregular — it is an Article 5(1) question. (Recall the note on section 5 above: Article 5 is one of those that may be derogated from.)

1. To be told the reason for the arrest

[Bill of Rights] Article 5(2): "Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him."

The provision separates two things: the reasons for arrest must be given "at the time of arrest"; any charges must be communicated "promptly".

[Common law] The reason must be conveyed in terms the person can understand; and where the arrested person's own violence or attempt to flee makes it impracticable to give it at the time, the courts have developed an exception allowing it to be given as soon as practicable afterwards. That exception comes from case law, not from the words of Article 5.

[Bill of Rights] Language and interpretation. The Bill of Rights contains two language guarantees of its own, subject to the same scope limit as the rest of Article 11(2) — its opening words, "In the determination of any criminal charge against him" (see "Contact with a lawyer" below). Article 11(2)(a) guarantees the right "to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him"; Article 11(2)(f) guarantees the right "to have the free assistance of an interpreter if he cannot understand or speak the language used in court". Interpretation arrangements during detention are not governed by these provisions — see "Treatment in detention" below.

2. The right to silence

[Bill of Rights] Article 11(2)(g): "not to be compelled to testify against himself or to confess guilt." Article 11(1): "Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law."

Note the scope of that subsection, for the same reason given under "Contact with a lawyer" below. Article 11(2) opens with "In the determination of any criminal charge against him", and the Chinese authentic text uses the word 「被告」 — the accused. Limb (g)'s text is therefore addressed to a person charged with an offence. The right of silence of a person who has been arrested but not charged, during questioning at a police station, does not rest on the literal words of Article 11(2)(g) but on the [common law]. No case is cited here, and this article states nothing about the rules the courts have developed on the pre-charge right of silence.

[Statute] Note also that while declining to answer is not generally in itself an offence, that is not an absolute proposition: each of the provisions listed under "Where the right stops" below creates its own exception.

[Administrative direction] The caution. The wording of the caution the police administer before questioning comes from the Rules and Directions for the Questioning of Suspects and the Taking of Statements — administrative directions, not legislation, understood to be issued by the Secretary for Security (this site does not hold their text, so this article makes no statement about that attribution). A breach of them does not automatically render a statement inadmissible; admissibility is decided by the court applying the common law test of voluntariness. This site's evidence base does not hold the text of those Directions, so this article does not reproduce the caution's wording.

(For contrast, there is a statutory caution, but it is a different thing: section 82(1)(b) of the Magistrates Ordinance (Cap. 227) requires a magistrate, at a preliminary inquiry before examining justices, to address the accused where "if the offence is punishable by death or if the accused does not then plead guilty" — this article relies only on the not-guilty-plea limb — in the words the statute itself sets out: "the following words or words to the like effect— “Do you wish to say anything in answer to the charge? You are not obliged to say anything unless you desire to do so, but whatever you say will be taken down in writing and may be given in evidence upon your trial.”" That is a magistrate's caution in court proceedings, not the caution given by police at a station.)

Where the right stops. What is protected is silence, not false answers:

• [Statute] Cap. 232 section 63 creates four limbs in a single sentence, all carrying the same penalty on summary conviction — a fine at level 2 and imprisonment for 6 months: "Any person who assaults or resists any police officer acting in the execution of his duty, or aids or incites any person so to assault or resists"; a person who "refuses to assist any such officer in the execution of his duty when called upon to do so"; and a person who "by the giving of false information with intent to defeat or delay the ends of justice, wilfully misleads or attempts to mislead" any such officer. The middle limb matters most to the right of silence: refusing to assist when called upon is itself within section 63, so the boundary on "declining to answer is not an offence" does not lie only on the false-answers side.
• [Statute] Cap. 232 section 64: knowingly making a false report of an offence to a police officer, or "misleads any police officer by giving false information or by making false statements or accusations", carries a fine at level 1 and imprisonment for 6 months.
• [Statute] Proof of identity — the definition. Section 54(1)(a) and (2)(a) permit an officer to stop a person and demand proof of identity; "proof of identity" there has the same meaning as in section 17B of the Immigration Ordinance (Cap. 115). Section 17B(1) opens "Subject to subsection (2)" and lists what will serve: "(a) his valid identity card; (b) a document issued by the Commissioner of Registration acknowledging that that person has applied— (i) to be registered under the Registration of Persons Ordinance (Cap. 177); or (ii) for a new identity card under regulation 13 or 14 of the Registration of Persons Regulations (Cap. 177 sub. leg. A); (c) a valid travel document held by him; (d) (e) documentary proof of identity officially issued to him for the purpose of his service in the Chinese People’s Liberation Army; or (f) a Vietnamese refugee card issued to him." (Paragraph (d) is empty in the current text.) The list is not fixed: section 17B(2) provides that "The Legislative Council may by resolution amend subsection (1) by deleting from or adding to the list of documents which may be used as proof of identity under this Part.", so everything below is to be read against the list as it stands at the time.
• [Statute] Proof of identity — the duty to carry and produce. Section 17C(1) requires every person who has attained 15 and falls within paragraph (b) of that subsection to "shall have with him at all times proof of his identity"; section 17C(2) requires production for inspection on demand by a police officer, an immigration officer or immigration assistant, or an authorized person, who is in uniform or produces documentary identification.
• [Statute] Proof of identity — the offence and its defence. Section 17C(3): "Any person who fails to produce proof of his identity for inspection as required by subsection (2) commits an offence and is liable on conviction to a fine at level 2: Provided that it shall be a defence in proceedings for an offence under this subsection for the person charged to prove that he had reasonable excuse for failing to produce proof of identity." Section 17C(4) then sets out when the loss or destruction of all proof of identity, reported or with no opportunity to report, is a reasonable excuse.
• [Statute] Proof of identity — arrest without warrant, and a duty to release. Section 17D(1) provides that a person referred to in section 17C(2)(a), (b) or (c) "may arrest without warrant any person who fails to produce for inspection on demand proof of his identity"; where the arrest is by a police officer or authorized person, the person arrested must if not released be delivered as soon as reasonably practicable into the custody of the officer in charge of a police station. This is worth holding on to: the section 17C(3) offence carries a fine only, and an arrest power all the same. Section 17D(4) is a protection for the reader in the other direction, but it opens with a condition that has to be read before relying on it: "Where a person who is arrested under subsection (1) otherwise than by an immigration officer or immigration assistant and is not— (a) taken before an immigration officer or immigration assistant under subsection (3); or (b) proceeded against for an offence under section 17C(3), he shall be released forthwith unless he may be held in lawful custody for some other reason." So the duty to release applies only where the arrest was not made by an immigration officer or immigration assistant; a person arrested by one of them does not get this protection from section 17D(4).
• [Statute] Specific statutory disclosure duties. Individual Ordinances (for example the Prevention of Bribery Ordinance and the Securities and Futures Ordinance) impose duties to answer or disclose, with offences and protections that are set by each Ordinance and are not uniform. For those regimes see ICAC and SFC investigations .

3. Contact with a lawyer

[Bill of Rights] Article 11(2)(b): "to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing". Article 11(2)(d) provides the right "to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it". Note the last limb: the Bill of Rights itself contains a guarantee of assigned legal assistance where the interests of justice require, without payment where the person cannot pay.

Note the scope of the provision. Article 11(2) opens with "In the determination of any criminal charge against him" — its text is addressed to a person charged with an offence. The access a person who has been arrested but not yet charged has to a lawyer at a police station does not rest on the literal words of Article 11(2) but on the common law and on administrative directions; this article makes no statement about the content of either (see "Matters this article does not address").

[Statute] For a person detained at the ICAC's offices, however, there is a statutory footing. Paragraph 4(1) of the Independent Commission Against Corruption (Treatment of Detained Persons) Order (Cap. 204 sub. leg. A) provides: "A detainee shall be afforded reasonable opportunity to communicate with a legal adviser and to consult with him in the presence, but out of the hearing, of an officer unless such communication or consultation would cause unreasonable hindrance or delay to the investigation of the suspected offence or the administration of justice." Note both the closing exception and the words "in the presence, but out of the hearing" — the paragraph does not provide for a consultation with no officer present.

[Statute] and [Administrative direction] Police general orders. Both the name and the status are in the legislation. Section 46 of the Police Force Ordinance (Cap. 232) is headed "Police general orders": section 46(1) empowers the Commissioner to "make such orders as he thinks expedient to enable him to administer the police force, render the police force efficient in the discharge of its duties and for carrying out the objects and provisions of this Ordinance", and section 46(2) provides that "Any orders made under this section shall be called “police general orders” (警察通例) and shall not be inconsistent with this Ordinance or any regulations under section 45." Section 47 separately provides for "headquarter orders" (總部通令). So the power to issue the orders is statutory, while the orders themselves are not legislation — their force is disciplinary: under regulation 3(2)(e) of the Police (Discipline) Regulations (Cap. 232A), "contravention of police regulations, or any police orders, whether written or verbal" is a disciplinary offence for an inspector or junior police officer. The one real limitation is this: the content of the orders is not a published text and is not held by this site, so this article does not reproduce it.

Legal aid and the Duty Lawyer Service are provided by the Legal Aid Department and the Duty Lawyer Service, whose eligibility criteria and procedures are set out in their own scheme documents. This site does not hold those documents and this article makes no statement about their tests.

4. Having someone notified

For a person held at a police station, the practice of allowing them to notify a relative or friend of where they are held rests on [administrative direction] and [common law], not on any police provision this article cites. This site does not hold those directions, so the article does not state their exact scope, whether notification may be delayed, or on what conditions.

Detention by the ICAC is a different matter: there it is legislation. The Independent Commission Against Corruption (Treatment of Detained Persons) Order (Cap. 204 sub. leg. A) is subsidiary legislation made under section 10A(8) of Cap. 204, not an administrative direction. [Statute] Paragraph 3 of that Order provides: "Immediately after the detention of a detainee, or so soon thereafter as may be practicable, the officer who authorized the detention shall— (a) at the request of the detainee, cause a close relative of the detainee, or any other person named by the detainee for that purpose, to be notified of his whereabouts; and (b) if the detainee is a public officer, cause the head of the department in which he holds office to be notified of the detention orally and in writing." Paragraph 17 of the same Order requires a notice in English and in Chinese to be displayed in every room used for detention, item 1 of which reads "You may request that your relatives or a friend be informed of your detention."

5. Treatment in detention

[Bill of Rights] Article 6(1): "All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person."

[Bill of Rights] Article 3: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation."

(The heading of that article is "No torture or inhuman treatment and no experimentation without consent", but a heading is only a label: section 2(6) of Cap. 383 provides that "A heading to any article does not have any legislative effect and does not in any way vary, limit or extend the meaning of the article." — which is why the words quoted above are the article's own.)

[Bill of Rights] Article 6(2)(a): "Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons." Article 6(2)(b): "Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication."

At a police station, the specific standards for food, water, medical attention and interpretation are set out in administrative directions. This site does not hold them and this article makes no statement about them.

[Statute] Detention at the ICAC's offices is governed by legislation instead. Paragraph 10 of the Independent Commission Against Corruption (Treatment of Detained Persons) Order (Cap. 204 sub. leg. A) provides: "(1) Reasonable arrangements shall be made by the guarding officer for the refreshment of a detainee, including the provision of adequate food, without charge to the detainee. … (3) Drinking water shall be supplied to a detainee on request." Paragraph 12(1) provides: "Subject to subparagraphs (2) and (3), if a detainee complains of or appears to be suffering from sickness or injury, he shall be provided with adequate medical attention at the offices of the Commission." Paragraph 13 requires every complaint by a detainee about the conditions of detention or an officer's conduct to be reduced to writing and brought as soon as possible to an officer not below the rank of assistant director. Paragraph 7 governs searching a detainee, including that "No detainee shall be searched other than by an officer of the same sex." The Order says nothing about interpretation.

How long before a magistrate

This section departs from what is commonly said. Please read it carefully.

[Statute] The step before that. Section 51 provides: "Every person taken into custody by a police officer with or without a warrant, except a person detained for the mere purpose of taking his name and residence or detained under section 54, shall be forthwith delivered into the custody of the officer in charge of a police station or a police officer authorized in that behalf by the Commissioner." The word there is "forthwith", and note that the section applies "with or without a warrant".

[Statute] Section 52(1) of the Police Force Ordinance deals with what happens after an arrested person is brought before the officer in charge of a police station. Unless the offence appears serious or the officer reasonably considers the person ought to be detained, the officer may discharge them on recognizance; and —

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Look at the structure of that sentence. The standard the statute sets is "as soon as practicable", and the section fixes no general time limit for it. The "48 hours" in the provision is not a ceiling on detention — it is the window for applying for a deportation arrest-and-detention warrant, and where such an application is made within it the section provides that the person "may be detained for a period not exceeding 72 hours from the time of such apprehension". That 72 hours is the cap in that situation, not an extension of some general limit: the section fixes no general limit on producing an arrested person before a magistrate. Note that the section is therefore not silent about outer limits altogether — it states one, for that one case.

For the person standing in a police station at hour six, the subsections to read are usually section 52(3) and (3A) rather than section 52(1) — this article states nothing about how often each is used in practice, because nothing in Cap. 232 provides for that. Section 52(1) governs a person who is "detained in custody"; the section provides two other exits:

• Section 52(3) — where, on a person being taken into custody, "it appears to the officer in charge of the police station or a police officer authorized in that behalf by the Commissioner that the inquiry into the case cannot be completed forthwith, he may discharge the said person on his entering into a recognizance, with or without sureties, for a reasonable amount to appear at such police station and at such time as is named in the recognizance", unless he has previously received written notice that his attendance is not required; such a recognizance is enforceable as if it were one for appearance before a magistrate.
• Section 52(3A)(a) — "Any such police officer may also discharge any such person if such person or a surety, or both such person and a surety, deposit with the officer such sum of money as the officer may specify having regard to all the circumstances, including the seriousness of the alleged offence, the circumstances of such person and the day on or the time at which such sum is to be deposited." Paragraph (b) provides that if a person so discharged does not appear as specified, a magistrate may order the sum deposited to be forfeited.

These two subsections are the statutory basis of what is commonly called police bail; how it works is covered in how bail works .

[Bill of Rights] Article 5(3) sets the same kind of standard, and it does not stop there: "Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment."

The second sentence is the most useful one in this section for a reader in custody: it shall not be the general rule that persons awaiting trial shall be detained — a presumption against pre-trial detention, with release open to being made subject to guarantees to appear.

So where does the "48 hours" people repeat come from? The closest source is this provision, and it governs something else: section 9I of the Criminal Procedure Ordinance ("Custody pending review") provides that where a District Judge or magistrate has made an order admitting a person to bail and the Secretary for Justice states he wishes to apply for a review, the detained person must be brought before a judge "as soon as practicable, and in any event within 48 hours". But read that 48 hours the way this section has read the others: it is the deadline for the first production before a judge, not a ceiling on the custody. Section 9I(3) allows the judge, if he thinks fit, to dispense with the requirements of section 9H(2) and (3) and hear the application; and section 9I(4) provides that "If the judge declines to dispense with the requirements of section 9H(2) and (3), he shall order the person so detained to be kept in custody for such time as he deems sufficient to enable section 9H(2) and (3) to be complied with, and may make such other order as he thinks just." So after the 48 hours the custody may continue for as long as the judge deems sufficient. In any event the section governs a bail decision that is being reviewed, not what happens after an ordinary arrest.

So which provisions really do fix 48 hours? Several do — and not one of them is a ceiling on ordinary police detention:

• [Statute] ICAC Ordinance (Cap. 204), section 10A(6) (detention at the Commission's offices) — but read section 10A(1) first, because it is a fork: a person arrested under section 10 "(a) may be taken forthwith to a police station and there dealt with in accordance with the Police Force Ordinance (Cap. 232); or (b) may be taken to the offices of the Commission." So the 48 hours bites only if the person is taken to the Commission's offices at all; taken to a police station, they are inside the Cap. 232 regime instead. Section 10A(6) provides: "A person who is detained at the offices of the Commission under subsection (2)(a) shall be brought before a magistrate as soon as practicable and in any event within 48 hours after his arrest unless he is sooner released, whether under subsection (2)(b) or otherwise."
• [Statute] Immigration Ordinance (Cap. 115), section 26 (detention for inquiry): where the conditions in paragraph (a) are satisfied, "such person may be detained for not more than 48 hours"; paragraph (b) then allows a further period of not more than 5 days.
• [Statute] Cap. 115, section 32(1)(a) (detention pending removal or deportation): a person to be removed "may be so detained for not more than 48 hours under the authority of an immigration officer", and thereafter under the authority of the Director.
• [Statute] Cap. 115, section 34 (detention after arrest under section 54(3)): paragraph (a) allows detention "by any police officer for the purpose of inquiries for not more than 48 hours" — but the section does not stop there: paragraph (b) allows detention "under the authority of the Secretary for Security for not more than a further 28 days pending the decision of the Chief Executive as to whether or not the suspension of the deportation order made against him should be rescinded". In a section about how long a person may be held, quoting the 48 hours and not the 28 days that follows it would be misleading, so both are set out.
• [Statute] Cap. 115, section 54(4) (arrest for breach of a condition suspending a deportation order): "If a person who has been arrested under subsection (3) is charged with any offence, he shall be brought before a magistrate within 48 hours after his arrest."
• [Statute] Criminal Procedure Ordinance, section 9I (custody pending review of a bail decision): as described above.

In one line. "48 hours" was not invented: it is real in the ICAC regime, in the immigration regime and in the bail-review regime. What it is not is the limit, under Cap. 232 section 52(1), on producing an ordinary arrested person before a magistrate — that section states only "as soon as practicable", and its own 48 hours is the window for applying for a deportation arrest-and-detention warrant. How long is "as soon as practicable" in any given case is a question of fact.

[Bill of Rights] Challenging the lawfulness of detention. Article 5(4): "Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful."

[Bill of Rights] Compensation. Article 5(5): "Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation."

Other regimes. The Ordinances this article relies on are listed in full under Sources: Cap. 232, Cap. 221, Cap. 383, Cap. 227 s. 82, Cap. 115, Cap. 204 and Cap. 204 sub. leg. A, Cap. 604, Cap. 557, Cap. 177 (within a quotation) and Caps 232A and 232C. Many other Ordinances set their own powers of arrest, detention periods and disclosure duties — Cap. 201 and Cap. 571, named above, among them — and nothing is stated here about those.

If the police act in breach

• [Common law] Statements ruled inadmissible. A court deciding whether to admit a confession applies the common law test of voluntariness and examines the circumstances in which the statement was obtained. The specific procedural safeguards (video-recorded interviews and the like) are set out in administrative directions; this site does not hold them, and this article does not state which procedural defects necessarily lead to exclusion.
• [Common law] Abuse of process. Serious procedural impropriety may amount to an abuse of process, and the court has power in an appropriate case to stay the proceedings.
• [Bill of Rights] and [Common law] Civil claims. Article 5(5) provides the right to compensation for unlawful arrest or detention; the causes of action for unlawful arrest and false imprisonment come from the common law.
• [Statute] Cap. 383 section 6 is itself the remedial provision. Its heading is "Remedies for contravention of Bill of Rights": in the proceedings described in section 6(1)(a) and (b), a court or tribunal "may grant such remedy or relief, or make such order, in respect of such a breach, violation or threatened violation as it has power to grant or make in those proceedings and as it considers appropriate and just in the circumstances." Section 6(2) then provides: "No proceedings shall be held to be outside the jurisdiction of any court or tribunal on the ground that they relate to the Bill of Rights." — so the objection that a court has no jurisdiction because the matter concerns the Bill of Rights is foreclosed. Read this with section 7 above: the Ordinance binds only the Government, public authorities and those acting on their behalf.
• [Statute] Police disciplinary proceedings. Regulation 3(1) of the Police (Discipline) Regulations (Cap. 232A) provides that an inspector or junior police officer who commits a disciplinary offence specified in regulation 3(2), and (a) pleads guilty before an appropriate tribunal, or (b) is found guilty by an appropriate tribunal, may be punished by such tribunal in accordance with those regulations. Two of the offences listed in regulation 3(2) bear directly on this article: (e) "contravention of police regulations, or any police orders, whether written or verbal" — which is where a breach of the police general orders described above has its consequence; and (k) "unlawful or unnecessary exercise of authority resulting in loss or injury to any other person or to the Government". Be clear what this is: it is a disciplinary consequence, governing how the Force punishes its own officers. It gives an arrested person no right to compensation and no right to have evidence excluded, and regulation 3(1) reaches only inspectors and junior police officers. This site does not hold the internal guidance on the tribunal procedure and nothing is stated about how it runs.
• [Statute] and [Administrative direction] Complaints. Complaints may be made to the Complaints Against Police Office, with oversight by the Independent Police Complaints Council. The Council's side of that system has a statutory basis: section 8(1)(a) of the Independent Police Complaints Council Ordinance (Cap. 604) provides that the Council's functions include "to observe, monitor and review the handling and investigation of reportable complaints by the Commissioner, and to make recommendations (as the Council considers appropriate) to the Commissioner or the Chief Executive or both of them in respect of the handling or investigation of reportable complaints;"; section 9 requires the Commissioner to submit lists of reportable and notifiable complaints to the Council at such intervals and in such manner as they agree. The Complaints Against Police Office's own internal procedure and guidelines are not held by this site, and nothing is stated here about their content.

Related guides: how bail works and ICAC and SFC investigations .