China (Hong Kong)

From FDNAPI Wiki
Jump to: navigation, search

Overview

Genetic samples can be collected upon reasonable suspicion of a "serious arrestable offense" (“嚴重的可逮捕罪行”) when authorized by a police officer above the rank of superintendent. Only when a person is convicted of such an offense can her genetic profile be included in the national DNA database, where it will remain indefinitely absent her subsequent exoneration. DNA samples taken from suspects against whom formal charges are not lodged must be destroyed no later than twelve months after they are collected, whereas samples taken from convicted persons must be destroyed "as soon as in practicable" after all pending related criminal proceedings against them have concluded.

The 2008 Interpol survey reports that Hong Kong had 4,161 crime scene DNA profiles and 16,235 individuals' profiles at the time of the survey.

Resources

  • Press articles

Detailed Analysis

I. Law on Point

The Dangerous Drugs, Independent Commission Against Corruption and Police Force Ordinance,[1] as amending the Independent Commission Against Corruption Ordinance[2] and the Police Force Ordinance.[3]

II. Entry Criteria

Persons convicted of any “serious arrestable offense,”[4] and all crime scene stains.[5]

III. Sample Collection

In any investigation in respect of an offence committed or believed to have been committed, an intimate sample may be taken from a person for forensic analysis only if a police officer of or above the rank of superintendent gives written[6] authorization for it to be taken, the appropriate written consent is given,[7] and a magistrate gives approval.[8] Moreover, an authorizing officer may only give her authorization as if she has reasonable grounds for suspecting that the person from whom the intimate sample is to be taken has committed a serious arrestable offence and for believing that the sample will tend to prove or disprove the commission of the offence by that person.[9]

In any investigation in respect of any offence committed or believed to have been committed, a non-intimate sample may be taken from a person with or without his consent for forensic analysis only if that person is in police detention or is in custody on the authority of a court and a police officer of or above the rank of superintendent authorizes it to be taken.[10] An authorizing officer may only give an authorization if she has reasonable grounds for suspecting that the person from whom the non-intimate sample is to be taken has committed a serious arrestable offence; and for believing that the sample will tend to confirm or refute the commission of the offence by that person.[11] An authorizing officer must give her authorization in writing.[12] Where it is impracticable to do so, she may give such authorization orally, in which case she must confirm it in writing as soon as practicable.[13] A police officer may use such force as is reasonably necessary for the purposes of taking or assisting the taking of a non-intimate sample.[14]

When a person has been convicted of a serious arrestable offence a police officer of the rank of superintendent or above may authorize the taking of a non-intimate sample of a swab from the mouth of said person for the purposes of adding the genetic profile derived from said sample to the DNA database.[15] A police officer may use such force as is reasonably necessary for the purposes of taking or assisting the taking of a non-intimate sample of a swab from the mouth convicted person.[16] A non-intimate sample of a swab from the mouth of a person may only be taken within 12 months after the person has been convicted of a serious arrestable offence.[17]

IV. Removal Criteria

Convicted persons’ profiles are kept indefinitely unless their conviction is subsequently quashed on appeal, in which case they are removed from the database.[18]

No person shall have access to, dispose of, or use an intimate or non-intimate sample except for the purposes of (a) forensic analysis in the course of an investigation of any offence or any proceedings for any such offence.[19] No person shall have access to, disclose or use the results of forensic analysis of an intimate or non-intimate sample except for the purposes of forensic comparison and interpretation in the course of investigation of any offence, any proceedings for such an offence, making the results available to the person to whom the results relate, or for adding said results to the DNA database.[20] Whether or not an intimate or a non-intimate sample or the results thereof have been destroyed, said sample or results shall not be used in any proceedings after it is decided that the person from whom the sample was taken will not be charged with any offence or, if the person has been charged with one or more such offences, the charge is withdrawn, or the person is discharged by a court before conviction of the offence, or the person is acquitted of the offence at trial or on appeal, whichever occurs first.[21]

V. Sample Retention

Convicted persons’ samples must be destroyed as soon as is practicable from such time as there is no other charge against the person in relation to an offence which renders the retention of the sample necessary and all proceedings (including any appeal) arising out of the conviction have been concluded;[22] suspects samples’ must be destroyed as soon as is practicable twelve months after the sample is taken if they are not charged with any offense, or if so charged when all charges are withdrawn, the person is discharged by a court before conviction of the offence or all the offences, or they are acquitted of all charges.[23]

VI. Database Access

The person from whom an intimate sample was taken is entitled to access to the information derived from the analysis of the sample.[24] The person from whom a non-intimate sample was taken pursuant to subsection is entitled to access to the information derived from the analysis of the sample.[25]

References

  1. Dangerous Drugs, Independent Commission Against Corruption and Police Force (Amendment) Ordinance, No. 68 of 2000, §§ 4 to 7 (H.K.).
  2. Independent Commission Against Corruption Ordinance, (2003) Cap. 204, §§ 10 to 10G (H.K.).
  3. Police Force Ordinance, (2005) Cap. 232, §§ 59 to 59H (H.K.).
  4. Police Force Ordinance, (2005) Cap. 232, 59G, §§ (1)(a) to (d) (H.K.), which provides in relevant part: (1) There shall be maintained (whether in computerized form or otherwise), by the Government Chemist on behalf of the Commissioner, a DNA database storing DNA information derived from an intimate sample or a non-intimate sample taken from a person pursuant to (a) section 59A [intimate samples obtained from persons suspected of a serious arrestable offence] or 59C [non-intimate samples obtained from persons suspected of a serious arrestable offence] if the person has been subsequently convicted of any serious arrestable offence; (b) section 10E of the Independent Commission Against Corruption Ordinance (Cap 204) [non-intimate samples procured from persons suspected of an offense specified in the Independent Commission Against Corruption Ordinance, (2003) Cap. 204, 10, §§ 5(a) to (g)] if the person has been subsequently convicted of any serious arrestable offence; (c) section 59E [non-intimate sample obtained from person convicted of a serious arrested offence no sample from whom has otherwise been obtained]; or (d) section 59F [non-intimate sample voluntarily given]. Police Force Ordinance, (2005) Cap. 232, § 3 (H.K.) defines a “serious arrestable offence” (“嚴重的可逮捕罪行”) as “an offence for which a person may under or by virtue of any law be sentenced to imprisonment for a term not less than 7 years; or . . . any other offence specified in Schedule 2.” Schedule 2 specifics the following offences: Crimes Ordinance, (1997) Cap. 200, § 24 (criminal intimidation), § 25 (assaults with intent to cause certain acts to be done or omitted), § 118F (homosexual buggery committed otherwise than in private), (§ 120 procurement by false pretences), § 124 (intercourse with girl under sixteen), § 132 (procurement of girl under twenty one). However, following the amendment of the Police Forces Ordinance in 2001, the Commissioner of the Hong Kong Police formulated a policy regulating the collection of non-intimate DNA samples. Under the Commissioner’s policy, DNA samples are only collected from persons suspected of commission or convicted of a serious arrestable offence listed on a “List of Selected Serious Arrestable Offences,” which is reviewed and updated from time to time. As of 2007, the Chief Superintendent of the Hong Kong Police explained that “due to resources consideration . . . only a limited number of serious arrestable offences were chosen for the collection of DNA samples.” Hung and Anor v. Comissioner of Police, [2007] 5 H.K.C. 528, 532-33 (H.K.).
  5. Government of Hong Kong, Hong Kong 2008, at 320 (Info. Servs. Dep’t ed., 2009) (stating that the “Criminalistics and Quality Management Group . . . handles forensic biological samples and performs DNA analysis of exhibits seized from crime scenes. . . . DNA profiles of convicted offenders, suspects and volunteers in its DNA Database are compared with outstanding DNA profiles of crime scene exhibits in unsolved cases [and] . . . [c]omparisons are also performed among outstanding DNA profiles of exhibits from different unsolved cases for possible connection.”).
  6. 232 LOHK § 59A(3) (H.K.)
  7. 232 LOHK § 59A(6) (H.K.)
  8. 232 LOHK § 59A(1)(a) to (1)(c) (H.K.). Here, “intimate sample” (“體內樣本”) means “(a) a sample of blood, semen or any other tissue fluid, urine or hair other than head hair; (b) a dental impression; (c) a swab taken from a private part of a person’s body or from a person’s body orifice other than the mouth.” 232 LOHK § 3 (H.K.). “[A]ppropriate consent” (“適當的同意”) means “(a) in relation to a person who has attained the age of 18 years, the consent of that person; (b) in relation to a person who has not attained the age of 18 years, the consent both of that person and of his parent or guardian.” Id. See also 232 LOHK § 59B (requiring “[w]here an authorization and the appropriate consent as required under section 59A(1)(a) and (b) have been given, a police officer shall make an application to a magistrate in accordance with Schedule 3 for the magistrate’s approval as required under section 59A(1)(c) and the magistrate may give his approval in accordance with [the law]”).
  9. 232 LOHK § 59A(2)(1) to (2)(b). Here, “serious arrestable offence” (“嚴重的可逮捕罪行”) means “(a) an offence for which a person may under or by virtue of any law be sentenced to imprisonment for a term not less than 7 years; or (b) any other offence specified in Schedule 2 [of Ordinance No. 68 of 2000].” 232 LOHK § 3 (H.K.).
  10. 232 HOLK § 59C(1)(a) to (1)(b) (H.K.). A “non-intimate sample” (“非體內樣本”) is defined as “(a) a sample of head hair; (b) a sample taken from a nail or from under a nail; (c) a swab taken from any part, other than a private part, of a person’s body or from the mouth but not any other body orifice; (d) saliva; (e) an impression of any part of a person’s body other than (i) an impression of a private part; (ii) an impression of the face; or (iii) the identifying particulars described in section 59(6).” 232 LOHK § 3 (H.K.). Under 232 LOHK § 59(6) (H.K.), “identifying particulars” (“鑑別資料”) means “photographs, finger-prints, palm-prints, sole-prints, toe-prints and the weight and height measurements of [a] person.” “[P]rivate part” (“私處”) is defined as “the genital or anal area” and includes “the breasts in the case of a woman.” 232 LOHK § 3 (H.K.).
  11. 232 LOHK § 59C(2)(a) to (2)(b) (H.K.).
  12. 232 LOHK § 59C(3)(a) (H.K.).
  13. 232 LOHK § 59C(3)(b) (H.K.).
  14. 232 LOHK § 59C(8) (H.K.).
  15. 232 LOHK § 59E(1) (H.K.).
  16. 232 LOHK § 59E(4) (H.K.).
  17. 232 LOHK § 59E(6) (H.K.).
  18. Police Force Ordinance, (2005) Cap. 232, 59H, § 5 (H.K.).
  19. 232 LOHK § 59D(1) (H.K.).
  20. 232 LOHK § 59D(2) (H.K.).
  21. 232 LOHK § 59D(4) (H.K.).
  22. Police Force Ordinance, (2005) Cap. 232, 59H, § 4 (H.K.).
  23. Police Force Ordinance, (2005) Cap. 232, 59H, § 1 (H.K.). See also Id. at § 6, which provides: The Government Chemist, whilst maintaining the DNA database under section 59G(1), shall take reasonable steps to ensure that every non-intimate sample taken pursuant to section 59E [non-intimate sample obtained from person convicted of a serious arrested offence no sample from whom has otherwise been obtained] or 59F [non-intimate sample voluntarily given] is retained only for as long as is necessary to enable DNA information to be obtained from the sample, and is then destroyed.
  24. 232 LOHK § 59A(5) (H.K.).
  25. 232 LOHK § 59C(5) (H.K.).