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 person, 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 comply with the demand. The arrest is a warrantless arrest.A shortcoming of warrantless identity-card arrests is that police officers have 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 persons for production of identity cards. That is contrary to due course of law. It is impermissible to leave police officers to their own devices.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 for that purpose. 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 unlimited identity-card arrests is social control of persons on the lowest rungs of the socio-economic ladder. Teenage Chinese males are subjected most often to identity-card arrests. Businessmen, businesswomen, and moneyed foreigners are not arrested at all.See also ‘How to Interpret, and Not Interpret, the Basic Law of Hong Kong.’ http://ssrn.com/abstract=1451237.