National security law: police take DNA samples from arrested protesters and their lawyer wants to know why

07-Jul-2020 Intellasia | South China Morning Post | 6:02 AM Print This Post

Hong Kong police confirmed they collected DNA samples from 10 people arrested over the new national security law on July 1, sparking debate on whether the practice was necessary in cases centred on protesting.

Taking genetic samples from suspects is most commonly used to investigate offences such as rape or serious assault, according to a lawyer for several of the detained.

Secretary for Security John Lee Ka-chiu offered assurances officers acted lawfully. “When police officers are investigating a criminal case and they think collecting some samples will be helpful for investigating the cases, as well as will provide evidence to prove some crimes, then they can exercise such power,” Lee said after a radio show on Saturday.

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In a reply to the Post, a force spokesman said the 10 people were detained for inciting commission of subversion. They can be jailed for up to 10 years if found guilty.

The collection of non-intimate DNA samples, referring to saliva and hair, is allowed under the Police Force Ordinance.

“[The samples] were taken from those arrested persons to confirm or disprove the commission of the offence by that persons,” the spokesman said.

The national security law, introduced late on Tuesday, aims to prevent and punish acts of secession, subversion, terrorism and collusion with foreign forces. Top Chinese lawmakers announced, drafted and passed the legislation in a little over a month following more than a year of anti-government protests in Hong Kong sparked by a now-withdrawn extradition bill. But the new law makes no reference to collecting DNA samples.

At least six of the arrested were in possession of flags and fliers advocating independence for the city, according to police. They include a motorcyclist accused of riding into a group of officers while carrying a flag calling for the liberation of Hong Kong, who became the first person charged under the sweeping law.

Lawyer Janet Pang Ho-yan, assisting three of the 10 arrestees, said collecting DNA collecting was rare in handling protest-related offences, such as rioting, illegal assembly or assaulting police officers. The practise was usually reserved for gathering evidence to prove charges over drug possession, sexual attack or other serious assaults.

“We are shocked to learn that the police handled the cases like this because our clients only carried or are found to have some promotional materials,” Pang said. “According to news reports, they include flags, stickers or leaflets… What is the DNA sample collection for? What do they want to prove? They already found the items… They also collected personal data in a disproportionate manner.”

According to the ordinance, senior officers can authorise taking a non-intimate DNA sample from a detainee if they reasonably suspect the person has committed a serious offence and the evidence will be instrumental to determine guilt. If the suspect does not consent, officers can use force to collect it.

Barrister Albert Luk Wai-hung speculated officers might want the samples to check if the suspects were linked to other criminal cases, where police had failed to make significant headway in their investigations.

Citing bomb cases as an example, Luk said officers could have found DNA evidence on the materials used.

“Under such a basis, police then will try to find if the DNA of these people are linked to cases in which they had no clues or failed to arrest suspects,” he said. “If they really can find evidence, then police could have grounds to proceed with prosecution.”

Police had to be cautious and if they collected DNA samples from almost everyone they arrested, then authorities should take monitoring measures such as issuing internal guidelines to avoid abuse of power, he said.

When one talks about having reasonable grounds in suspecting something, it can just be a throwaway comment

Barrister Albert Luk

“When one talks about having reasonable grounds in suspecting something, it can just be a throwaway comment,” Luk said. “With the national security law, the police’s scope of investigation will be broadened… it’s understandable their investigation will be more detailed. We can’t stop them. But I hope they won’t abuse the mechanism.”

Craig Choy, also a barrister, said Hong Kong’s the privacy law was outdated and lacked a special category covering “sensitive data” to ensure protection of biometric data such as DNA.

“There is an exemption to crimes under Hong Kong privacy law. The police may use the data for other purposes,” he said. The force could use samples to build a database for profiling for the purpose of crime investigation.

He also noted there was no law to prohibit a resident’s data from being sent outside Hong Kong.


Category: Hong Kong

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