Police Demands for Hong Kong Identity Cards

Abstract

Under the Hong Kong Immigration Ordinance, an authorised governmental employee has unlimited authority to demand that any Hong Kong resident, at any time, anywhere, produce proof of identity. Usually, it is a police officer who demands, and, usually, it is a Hong Kong identity card which is produced.

The demand is an arrest, because the Hong Kong resident is obliged to halt, and to comply with the demand. The arrest is a warrantless arrest.

A shortcoming of a warrantless identity-card arrest is that, at the moment that the arrest is made, a police officer knows no facts which are indicative, subjectively or objectively, of the commission of an identity-card offence by the Hong Kong resident who is arrested.

The Immigration Ordinance does not guide police officers in the exercise of their discretion to arrest Hong Kong residents for production of identity cards. To leave police officers to their own devices is inconsistent with due course of law.

Assuming that warrantless arrests of Hong Kong residents are permissible, the ordinances exclude warrantless arrests of foreigners for the purpose of requiring them to produce proof of identity.

For the public at large, the Rule of Law is undercut by identity-card arrests, in that the Immigration Ordinance does not give to Hong Kong residents notice of when and why they will be arrested. Police officers make ad-hoc demands for production of identity cards, although the Rule of Law prohibits ad-hoc official action.

The governmental motivation for making unlimited identity-card arrests is social control of persons on low rungs of the socio-economic ladder.

See also 'How to Interpret, and Not Interpret, Hong Kong Law': http://ssrn.com/abstract=1451237.

Keywords: arbitrary, Basic Law, Bill of Rights Ordinance, capricious, due process, freedom of movement, identification card, identity card, Law Reform Commission, von Hayek

JEL Classification: K14, K42