Proposals to Implement Article 23 of the Basic Law
- Police Investigation Powers
Introduction
This note sets out a comparison of
emergency entry and search powers proposed for the Police
in the Public Consultation document, and similar statutory
provisions in Hong Kong as well as a number of other
jurisdictions.
The Proposed Emergency Entry and
Search Powers
2. The existing general investigation
powers may not always be adequate to cater for the special
nature of some offences under Article 23 of the Basic
Law. While a number of other Ordinances (e.g. Fire Arms
and Ammunitions Ordinance, Dangerous Drugs Ordinance)
provide emergency entry and search powers for the police
to deal with specific cases, similar emergency powers
will be needed for the police in the investigation of
some of the more serious Article 23 offences.
3. We therefore propose that an emergency
entry, search and seizure power should be provided to
the police for investigating some Article 23 offences.
In order to provide safeguards against abuse and to
comply with the constitutional protection of the inviolability
of private premises under Article 29 of the Basic Law,
the emergency power should only be exercised by a sufficiently
senior police officer (e.g. a superintendent), and when
he reasonably believes that -
- a relevant offence has been or is
being committed; and
- unless immediate action is taken
evidence of substantial value to the investigation
of the offence would be lost; and
- the investigation of the relevant
offence would be seriously prejudiced as a result.
Emergency Entry and
Search Powers in Hong Kong and some other Jurisdictions
4. Similar emergency
entry and search powers are found in other Hong Kong
laws and in many other common law jurisdictions. A table
setting out such statutory provisions in our laws and
those in the United Kingdom, Canada, New Zealand, Australia,
Ireland, Malaysia and Singapore is enclosed.
Security Bureau
October 2002
Statutory provisions of Hong Kong and other jurisdictions
empowering
emergency entry and search without judicial warrant
Hong Kong
| Provisions |
Offence/suspicion |
Investigation
powers |
Normal
case |
Urgent
case |
Remark |
s.11,
Official Secrets Ordinance, Cap. 521
[enacted in June 1997] |
...
reasonable ground for suspecting that an offence
under Part II of the Ordinance (espionage)
has been or is about to be committed. |
-
to enter at any time any premises or place
named in the warrant, if necessary by force;
- to search the premises or place and every
person found therein; and
- to seize anything that is evidence of an
offence under Part II |
magistrate's
warrant authorizing any police officer to
exercise the powers (s.11(1)). |
Where
it appears to a superintendent of police that
the case is one of great emergency
and it is in the interest of the UK and HK
immediate action is necessary, he may by a
written order give to any police officer the
like authority as may be given by the warrant
of a magistrate (s.11(2)). |
Modeled
on s.9 of UK Official Secrets Act 1911. |
s.52(1)(e),Dangerous
Drugs Ordinance,Cap. 134
[amended in 1994] |
...
has reason to suspect that there is therein
an article liable to seizure under the Ordinance. |
-
to enter and search any place or premises
|
magistrate's
warrant authorizing any police or C&E officer
to exercise the powers (s.52(1E)) |
Any
police or C&E officer may do so without a
warrant under subsection (1E) where it would
not be reasonably practicable to obtain
such a warrant (s.52(1)(e)). |
The
current version of s.52(1)(e) was introduced
in 1994 after the decision of Jerome Chan
J in R v Yu Yem-Kin (1994) 4 HKPLR 75, which
held (p.98, line 20) that:- "A provision in
the statute that such warrantless search and
seizure is only to be permissible if it would
not be reasonably practicable to obtain a
warrant would bring the operation of the section
within the bounds of reason and necessity." |
| s.40,
Firearms and Ammunition Ordinance,Cap. 238 |
...
there is reasonable ground for suspecting
that an offence under the Ordinance has been,
is being, or is about to be committed. |
-
to enter at any time any place, premises,
vessel, vehicle, train or aircraft, if necessary
by force, and to search the same and every
person found there |
magistrate's
warrant authorizing a police or C&E officer
to exercise the powers (s.40(1)). |
If
a police/C&E officer of or above the rank
of Superintendent is satisfied
(a) that there is reasonable ground for suspecting
that an offence under this Ordinance has been,
is being, or is about to be committed, and
(b) that -
(i) the exercise of the powers in subsection
(1), or any of them, is necessary;
(ii) there would be delay in obtaining a warrant
under subsection (1); and
(iii) the delay may defeat the purposes
of the entry,
he may in writing give authority to any police/
C&E officer to exercise the said powers (s.40(2)). |
|
s.17Prevention
of Bribery Ordinance,Cap. 201
[added in 1996] |
...
there is reasonable cause to believe that
in any premises or place there is anything
which is or contains evidence of an offence
under this Ordinance. |
-
to enter such premises or place, by force
if necessary, and search the same |
a
warrant issued by a magistrate or the CFI
authorizing an investigating officer of the
ICAC to exercise the powers (s.17(1A)). |
Where
the Commissioner is satisfied that there is
reasonable cause to believe:-
(a) that in any premises or place there may
be anything which is or contains evidence
of an offence under this Ordinance, and
(b) that the making of an ex parte application
under subsection (1) would seriously impede
an investigation into or proceedings relating
to, an offence suspected to have been committed
under this Ordinance,
the Commissioner may empower such officer
to enter such premises or place, by force
if necessary, and search the same (s.17(1B)). |
|
s.56(1A)(e)Immigration
Ordinance,Cap. 115
[added in 1995] |
...
has reason to suspect that there is therein
any thing which may be seized under this Ordinance. |
-
to enter and search any premises or place |
magistrate's
warrant authorizing the police or immigration
officer to exercise the powers
(s.56AA) |
An
immigration officer or immigration assistant
may exercise the powers without a warrant
where it would not be reasonably practicable
to obtain one (s.56(1A)(e)). |
|
s.123,Copyright
Ordinance,Cap. 528
[enacted in May 1998] |
...reasonably
suspects that there is:-
(A) an article which is infringing copy of
a copyright work;
(B) an article specifically designed or adapted
for making copies of a particular copyright
work which article is used or intended to
be used for making infringing copies of any
such work; or
(C) anything which appears to him to be or
to contain, or to be likely to be or to contain,
evidence of an offence under Part II of the
Ordinance. |
-
to enter and search any place |
magistrate's
warrant authorizing a C&E officer to exercise
the powers (s.123(1)) |
A
C&E officer may exercise the powers without
a warrant if the delay necessary to obtain
a warrant could result in the loss or destruction
of evidence or for any other reason it
would not be reasonably practicable
to obtain a warrant (s.123(3)). |
|
s.19Prevention
of Copyright Piracy Ordinance,Cap. 544
[enacted in May 1998] |
...
reasonably suspects that there is:-
(i) any optical disc which has been manufactured
in contravention of Part II (manufacturing
of optical disc) ; or
(ii) any machinery, equipment or other thing
which may be or may contain, or which may
likely be or contain, evidence of an offence
under this Part II. |
-
to enter and search any place |
magistrate's
warrant authorising a C&E officer to exercise
the powers (s.19(1)) |
A
C&E officer may exercise the power without
a warrant if the delay necessary to obtain
a warrant could result in the loss or destruction
of evidence or for any other reason it
would not be reasonably practicable
to obtain a warrant (s.19(3)). |
|
| s.12(3)Dangerous
Goods Ordinance,Cap. 295 |
...
reasonable grounds for suspecting that there
may be any of the following liable to seizure:-
(i) anything with respect to which such officer
or member may have reasonable grounds for
suspecting that any offence against this Ordinance
has been committed; or
(ii) any other thing, which may appear to
such officer or member likely to be, or to
contain, evidence of any such offence. |
-
enter and search any part of any premises
used solely for dwelling purposes. |
magistrate's
warrant authorizing police officer and officers
of the specified government departments to
exercise the powers (s.12(3)(a)) |
to
exercise the powers without warrant, where
such officer is of the opinion having regarding
to the circumstances that the purpose of
the entry or the search would be defeated
by application for such warrant (s.12(3)(b)). |
Under
s.12(1)(c), warrant is not required if the
premises to be searched are not used solely
for dwelling purposes. |
s29(3)Entertainment
Special Effects Ordinance,Cap. 560
[enacted in Mar 2001] |
...
reasonable grounds for suspecting that there
may be any of the following liable to seizure:-
(i) anything with respect to which such officer
may have reasonable grounds for suspecting
that any offence against this Ordinance has
been committed; or
(ii) any other thing, which may appear to
such officer likely to be, or to contain,
evidence of any such offence. |
-
to enter and search any part of any premises
used solely for dwelling purposes |
magistrate's
warrant authorizing police officer and the
officers of specified government departments
to exercise the powers (s.29(3)(a)) |
to
exercise the powers without warrant, where
such officer is of the opinion having regarding
to the circumstances that the purpose of
the entry or the search would be defeated
by application for such warrant (s.29(3)(b)). |
Under
s.29(1)(c), warrant is not required if the
premises to be searched are not used solely
for dwelling purposes. |
| s.14Dutiable
Commodities Ordinance,Cap. 109 |
...
reasonable cause to believe that in any place
there are concealed or deposited goods liable
to forfeiture under this Ordinance, or with
respect to which an offence has been committed
or is about to be committed against this Ordinance. |
-
to enter and search any place |
magistrate's
warrant authorizing any police or C&E officer
to exercise the powers (s.14(1)) |
to
exercise the powers without warrant where
the officer has reasonable grounds for believing
that unless the place is searched forthwith
the goods are likely to be removed (s.14(3)). |
|
| s.23(1)Gambling
Ordinance,Cap. 148 |
...
reasonably suspects that any premises or place
are or is a gambling establishment. |
-
to enter and search the premises or place |
A
police officer of or above the rank of superintendent
may authorize in writing any police officer
to exercise the powers. |
|
|
United Kingdom
| Provisions |
Offence/suspicion |
Investigation
powers |
Normal
case |
Urgent
case |
Remark |
| s.9Official
Secrets Act 1911 |
...
there is reasonable ground for suspecting
that an offence under this Act has been or
is about to be committed. |
-
to enter at any time any premises or place,
if necessary, by force, and
- to search the premises or place and every
person found therein; and
- to seize ... anything which is evidence
of an offence under this Act having been or
being about to be committed. |
a
warrant issued by a justice of peace authorizing
any constable to exercise the powers (s.9(1)) |
Where
it appears to a superintendent of police that
the case is one of great emergency
and that in the interests of the State immediate
action is necessary, he may by a written order
under his hand give to any constable the like
authority as may be given by the warrant of
a justice (s.9(2)). |
|
|
Canada
| Provisions |
Offence/suspicion |
Investigation
powers |
Normal
case |
Urgent
case |
Remark |
| ss.487
&487.11Criminal Code,Chapter C-46 |
...
reasonable grounds to believe that there is
in a building, receptacle or place:-
(a) anything on or in respect of which any
offence against this Act or any other Act
of Parliament has been or is suspected to
have been committed,
(b) anything that there are reasonable grounds
to believe will afford evidence with respect
to the commission of an offence, or will reveal
the whereabouts of a person who is believed
to have committed an offence, against this
Act or any other Act of Parliament,
(c) anything that there are reasonable grounds
to believe is intended to be used for the
purpose of committing any offence against
the person for which a person may be arrested
without warrant, or(c.1) any offence-related
property. |
-
to search the building, receptacle or place
for any such |
a
warrant issued by a justice authorizing a
peace office or a police officer to exercise
the power (s.487(1)). |
A
peace officer, or a public officer ... may,
in the course of his or her duties, exercise
any of the powers described in subsection
487(1) ... without a warrant if the conditions
for obtaining a warrant exist but by reason
of exigent circumstances it would be
impracticable to obtain a warrant (s.487.11). |
In
Hunter v Southam (1984) 11 D.L.R. 641,
Dickson C.J. recognized the obvious fact that
prior authorization is not feasible in every
situation. By implication, he acknowledged
that a warrantless search could be upheld
as reasonable in some situations.
There are many other provisions specifically
authorizing the exercise of the powers of
search and seizure provided for in s.487 of
the Criminal Code without a warrant "if the
condition for obtaining a warrant exist but,
by reason of exigent circumstances,
it would not be feasible to obtain a warrant.
Examples are:-s.31, Nuclear Safety and Control
Act; s.15, Wild Animal and Plant Protection
and Regulation of International and Interprovincial
Trade Act,; and s.39.2, Oceans Act. |
| s.11Controlled
Drugs and Substances Act |
...
reasonable grounds to believe that-
(a) a controlled substance or precursor in
respect of which this Act has been contravened,
(b) any thing in which a controlled substance
or precursor referred to in paragraph (a)
is contained or concealed,
(c) offence-related property, or
(d) any thing that will afford evidence in
respect of an offence under this Act
is in a place. |
-
to search the place for any such controlled
substance, precursor, property or thing and
to seize it. |
a
justice's warrant authorizing a peace officer
(s.11(1)) |
A
peace officer may exercise the powers without
a warrant if the conditions for obtaining
a warrant exist but by reason of exigent
circumstances it would be impracticable
to obtain one (s.11(7)). |
|
| s.111Customs
Act |
...reasonable
grounds to believe that there will be found
in a building, receptacle or place
(a) any goods or conveyance in respect of
which this Act or the regulations have been
contravened or are suspected of having been
contravened,
(b) any conveyance that has been made use
of in respect of such goods, whether at or
after the time of the contravention, or
(c) anything that there are reasonable grounds
to believe will afford evidence in respect
of a contravention of this Act or the regulations. |
-
to search the building, receptacle or place
for any such thing and to seize it |
a
warrant issued by a justice of peace authorizing
an officer to excise the powers (s.111(1)). |
An
officer may exercise the powers without a
warrant if the conditions for obtaining the
warrant exist but by reason of exigent
circumstances it would not be practicable
to obtain the warrant (s.111(6)).
"Exigent circumstances" include circumstances
in which the delay necessary to obtain a warrant
under subsection (1) would result in danger
to human life or safety or the loss or destruction
of anything liable to seizure (s.111(7)). |
There
are many similar statutory provisions empowering
the law enforcement officers to exercise the
search and seizure powers without warrant
in exigent circumstances.
Examples are:
-s.15(7), Competition Act;s.102.02(5), Immigration
Act; s.19(3), Saguenay-St. Lawrence Marine
Park Act; s.15(3), Chemical Weapons Convention
Implementation Act. |
|
New Zealand
| Provisions |
Offence/suspicion |
Investigation
powers |
Normal
case |
Urgent
case |
Remark |
| s.78DCrimes
Acts (1961-1999) |
...reasonable
ground for believing (a) that there is in
any building, aircraft, ship, hovercraft,
carriage, vehicle, box, receptacle, premises,
or place-
(i) anything upon or in respect of which an
offence against s.78 (espionage) has been
or is suspected of having been committed;
or
(ii) anything which there is reasonable ground
to believe will be evidence as to the commission
of any such offence; or
(iii) anything which there is reasonable ground
to believe is intended to be used for the
purpose of committing any such offence ... |
-
to enter and search the building, aircraft,
ship, carriage, vehicle, premises, or place
with such assistants as may be necessary,
and, if necessary, to use force for making
entry, whether by breaking open doors or otherwise. |
A
search warrant issued by any District Court
Judge or Justice or Community Magistrate or
any Registrar authorizing any constable to
exercise such powers (s.198 of the Summary
Proceedings Act 1957) |
Where
a commissioned officer of the police is satisfied
that there is reasonable ground for believing
that ... the case is one of great emergency
and that immediate action is necessary (s.78D(1)(b)),
he may by a written order signed by him give
to any member of the Police the like authority
that may be given by a search warrant issued
under s.198 of the Summary Proceedings Act
1957. |
|
|
Australia - Commonwealth Consolidated Acts
| Provisions |
Offence/suspicion |
Investigation
powers |
Normal
case |
Urgent
case |
Remark |
| s.3TCrimes
Act 1914 |
...suspects,
on reasonable grounds, that:
(a) a thing relevant to an indictable offence
is in or on a conveyance; and
(b) it is necessary to exercise a power under
subsection (2) in order to prevent the thing
from being concealed, lost or destroyed; and
(c) it is necessary to exercise the power
without the authority of a search warrant
because the circumstances are serious and
urgent. |
-
stop and detain the conveyance; and
- search the conveyance and any container
in or on the conveyance, for the thing; and
- seize the thing if he or she finds it there.
"conveyance" includes an aircraft, vehicle
or vessel (s. 3(1)). |
a
search warrant issued by a magistrate or a
justice of peace authorizing a constable to
search premises (s.3E) or, in an urgent case,
a warrant by telephone, telex, fax or other
electronic means (s.3R) |
The
constable may exercise the powers without
a warrant where he suspects, on reasonable
grounds, that it is necessary to exercise
the power without the authority of a search
warrant because the circumstances are serious
and urgent (s.3T(1)(c)). |
|
|
Ireland
| Provisions |
Offence/suspicion |
Investigation
powers |
Normal
case |
Urgent
case |
Remark |
| s.29Offences
against the State Act 1939 |
...reasonable
ground for believing that documentary evidence
of or relating to the commission or intended
commission of an offence under any section
of this Act or any document relating directly
or indirectly to the commission or intended
commission of treason is to be found. |
-
to enter, and if necessary by the use of force,
any building or other place and
- to search the said building or other place,
and any person found therein, and
- to seize any document or thing found in
such building or other place or on such person
which such member reasonably believes to be
evidence of or to relate directly or indirectly
to the commission or intended commission of
an offence under any section of this Act or
to the commission or intended commission of
treason. |
A
search warrant issued by an officer of the
Garda Siochana, not below the rank of chief
superintendent, to a member of the Garda Siochana
not below the rank ofinspector (s.29(1)). |
|
| s.16Official
Secrets Act 1963 |
...reasonable
grounds exist for suspecting that there has
been or is about to be a contravention of
section 9 (acts contrary to safety or preservation
of State) |
-
to search any premises, place, vessel or aircraft |
a
warrant issued by a justice of the District
Court authorizing any member of the Garda
Siochana to exercise the power (s.16(1) |
Where
an officer of the Garda Siochana not below
the rank of chief superintendent has reasonable
grounds for believing that in the interest
of the State immediate action is necessary,
he may issue a search warrant having the same
effect as a search warrant issued by a justice
of the District Court (s.16(2)). |
|
|
Malaysia
| Provisions |
Offence/suspicion |
Investigation
powers |
Normal
case |
Urgent
case |
Remark |
| s.19Official
Secrets Act 1972 |
...reasonable
cause to believe that in any place there is
concealed or deposited any evidence of the
commission of an offence under this At, or
of any prescribed offence. |
-
to enter any place, by force if necessary
and there to search for, seize and detain
any such evidence |
Magistrate's
warrant authorizing any police office to exercise
such powers (s.19(1)) |
Where
... any police officer not below the rank
of Inspector ... has reasonable grounds for
believing that by reason of the delay in obtaining
a search warrant the object of the search
is likely to be frustrated, he may exercise
the powers as if he were empowered to do so
by a warrant issued under subsection (1) (s.19(2)). |
|
|
Singapore
| Provisions |
Offence/suspicion |
Investigation
powers |
Normal
case |
Urgent
case |
Remark |
| s.15(1)Official
Secrets Act (Chapter 213) |
...reasonable
ground for suspecting that an offence under
this Act has been or is about to be committed. |
-
to enter at any time any premises or place,
if necessary by force, and
- to search the premises or place and every
person found therein, and
- to seize and retain ... anything which
is or may be evidence of an offence under
this Act having been or being about to be
committed |
A
warrant issued by a Justice of the Peace authorizing
any police officer to exercise the power (s.15(1)). |
Where
it appears to an officer of police not below
the rank of sergeant that the case is one
of great emergency and that in the
interests of Singapore immediate action is
necessary, he may, by a written order under
his hand, give to any constable the like authority
as may be given by the warrant of a Justice
of the Peace (s.15(5)). |
|
| s.66(2)Internal
Security Act 1989 |
...suspects
that any article or material being evidence
of commission of any offence under Part III
of this Act (relating to Security Areas) is
likely to be found |
-
to stop and search any vehicle, vessel, train,
aircraft or individual (s.66(1));
- to enter and search any premises or place
and seize any article or material so found
(s.66(2)). |
Any
police officer of or above the rank of corporal
or any member of the security forces of or
above the rating or rank of leading rate or
non-commissioned officer (as the case may
be) or any person authorized in writing to
do so by the officer in charge of a division
may exercise the power without a warrant (s.66(1)&(2)). |
|
|
Security Bureau - October 2002
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