FORENSIC DNA IN HONG KONG AND CHINA
By Philip Beh

The introduction of forensic DNA technology in Hong Kong was fortuitously delayed in that the early problems with statistics and standardizations had more or less been resolved before Hong Kong introduced forensic DNA into criminal case work. Despite the late introduction, Hong Kong began with RFLP (restriction fragment length polymorphism), a nearly obsolete technology, but eventually drifted into the now widely accepted STR platform. In actual fact, the forensic science laboratory in Hong Kong essentially adopted the United States’ scheme; CODIS, the FBI’s forensic DNA database system, was the backbone of the system used for establishing Hong Kong’s DNA database.

DNA database authorizing legislation was introduced as an Amendment Bill to three existing pieces of legislation: Dangerous Drugs Ordinance, Independent Commission Against Corruption Ordinance and Police Force (Amendment) Bill 2000. The passage of the legislation was not easy, involving nearly twenty meetings at the Legislative Council (Hong Kong’s equivalent of a parliament) where members raised concerns about privacy and oversight.

The legislation essentially attempted to sooth legislators’ concern with regards to control of the database by separating the information between two departments: the Hong Kong Police Force and the Government Laboratory, which is under the umbrella of the Department of Health. Personal details such as name, age, and sex are held in police databases and linked to an identifier number. This identifier number is unique and is then linked to DNA data stored in a database held by the Government Laboratory.

The legislation allows for storage of DNA information of persons convicted of a “serious arrestable offense.” “Serious arrestable offense,” however, was ingeniously given a short description in a Schedule in the legislation with a comment that the listed offenses were for ease of reference only. The listed offenses include criminal intimidation, assault, buggery, procurement by false pretenses, and intercourse with a girl under 16, among others. In effect, DNA samples can be collected in a far wider range of offenses than was actually written in the legislation.

Specimens can be obtained with or without consent. In the event that no consent is provided, a Superintendent of Police must authorize the collection of a non-intimate sample (buccal swab) after satisfying himself/herself that the sample is taken from a person suspected of committing a serious arrestable offense and that the results of the sample will tend to confirm or disprove the commission of the offence.

The legislation further makes provision for the disposal of samples and records if the person was eventually not charged, discharged by a court before conviction or had been acquitted of an offence at trial or on appeal.

The number of data currently stored in the DNA database since its introduction in 2000 is reported to be 34,154 at the end of 2009, as recorded in the Annual Report of the Government Laboratory. The number of tests performed were reported as 4,915 (2009), 4,009 (2010) and 4,600 (2011). The data now includes data from 15 STR loci. It is unclear, however, how many records have been removed following non-convictions.

At the time of writing it is not known if Mt-DNA databases and SNP databases are being recorded. It is also unclear if the current DNA database involves only the storage of data or if biological samples are being stored as well.

Despite the existence of a DNA database for almost a decade, there have been no reported wrongful conviction cases in Hong Kong. It is the writer’s view that there are probably a variety of reasons for this, but one critical element is that of a system of proper storage of biological samples in conditions where re-testing is possible. At this moment, however, there is a lack of independent forensic testing capabilities to support such re-testing efforts.

There is much high end research activity in Hong Kong involving genetic material from clinical patients obtained with consent. However, there is currently no territory wide oversight legislation on the storage of such data. There is also no attempt to centralize such material and data into a biobanking facility. Indeed there appears to be resistance to such a move from various stakeholders.

Forensic DNA capabilities in China have advanced by leaps and bounds. Many forensic laboratories in China now have the latest equipment and perform large numbers of tests on paternity, as well as on criminal cases. A recent news article announced the setting up of a missing children DNA database. However, to my knowledge there is no national DNA database in China. There are certainly multiple DNA databases kept in public security bureau forensic facilities in the major cities in China, but it is less clear if this data is readily comparable or how it is being used. One of the barriers faced is that in the initial rush to perform forensic DNA work, some laboratories developed their own STR probes; hence there is a lack of standardized easily comparable probes, though time will probably lead to such a capability. A quick review of forensic literature will reveal that there are many forensic centers in China now producing cutting edge research work in forensic DNA involving Mt-DNA, SNP’s and even into areas of phenotyping. As China’s forensic DNA collection practices rapidly advance and mature, it remains to be seen whether they will be accompanied by increased oversight.

Dr. Philip Beh is Associate Professor of Forensic Pathology in The University of Hong Kong’s LKS Faculty of Medicine.