The Hong Kong Court of Appeal expunged on Tuesday applicants’ new evidence that sought to demonstrate the regularity and widespread of frontline police officers’ non-compliance with the insignia policies. The court reasoned that large-scale non-compliance of a constant or definite pattern was a new allegation that went beyond the scope of the applicants’ original case.

In applying for the expungement of the new evidence, a government attorney argued—and the court accepted—that accepting new evidence of non-compliance is unfair and prejudicial after the government respondents already refuted or explained previous examples provided by the applicants. The introduction of evidence also barred the government from addressing them at the lower court level and therefore caused unfairness.

The applicants’ counsel contended that they adduced evidence properly to refute the government’s assertion that instances of non-compliance were isolated. The applicants also reiterated that their original case was to challenge the police’s systematic failure to comply with insignia policies.

The appellate court rejected both arguments. Nonetheless, the court accepted the applicants’ contention that instances of non-compliance were isolated is an argument raised after the leave of appeal was granted. Therefore, the court accepted part of the applicants’ evidence to rebut the government’s assertion.

The government attorney also argued that instances of non-compliance should be seen against the scale of deployment. The government attorney stated that the new evidence indicated a range between 45,243 to 94,350 man-times in the months between November 2019 to March 2020 for anti-riot officers, and 227 to 3,781 man-times for the special tactical contingent officers in the same period.

In 2020, five judicial reviews challenged the constitutionality of the police’s non-compliance with the insignia policies when they were performing their non-covert duties during the 2019 anti-government protests. The Hong Kong High Court declared that failing to ensure compliance with insignia policies, the Commissioner of Police violates Article 3 of the Hong Kong Bill of Rights. The High Court further held that the existing complaint mechanism involving the Complaints Against the Police Office, with oversight by the Independent Police Complaints Council, is inadequate to discharge the obligation pursuant to Article 3 of the Bill of Rights. The appellate court granted leave to the government to appeal against these declarations in December 2022.

Article 3 of the Bill of Rights provides that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Citing the reasoning from the European Court of Human Rights, the High Court ruled that the right includes a prohibition on the use of unnecessary or excessive force by police officers. The prohibition further imposed on the government a positive duty to investigate suspected cases of breach of Article 3.