The Action Committee Against
Narcotics (ACAN) has recently issued a consultation paper on a scheme called
RESCUE Drug Testing Scheme (RDT). It is
a proposal to change the present law, so as to empower the police and other law
enforcement officers to require a person to undergo a drug test (mainly urine
test) when there is so called “reasonable suspicion” that he has taken
dangerous drugs. This is not to clarify
any ambiguity in the present law.
Instead, it involves a major change to it. Currently, in the Dangerous Drugs Ordinance there
is a specific section (section 54AA) that prohibits the test of urine from a
suspected person except when the person appropriately consents to the test. This urine-testing-matter is taken so
seriously that there is another section (section 54AB) in the Ordinance detailing
the use of information gathered from the urine test (done under consent of the
person), and the use and disposal of the urine sample collected.
These sections are in place to
protect basic human rights. Article 6 of
the European Convention on Human Rights is the provision to protect the right
to a fair trial. Article 6(2) states that: “Everyone
charged with a criminal offence shall be presumed innocent until proved guilty
according to law.”
The burden of proof rests totally on the
prosecution to prove beyond reasonable doubt that the defendant is guilty. The defendant needs to do nothing to prove his
innocence. Even in a charge of murder,
the defendant can remain silent. If the
prosecution cannot prove his case, the defendant is innocent, as he always is. To guard against torture and coercion, the English
common law and the Fifth Amendment to the United States Constitution spell out
the right against self-incrimination. The
prosecution is required to prove his case without the cooperation or provision
of any evidence from the defendant.
It is against human rights to
require a person to provide a urine sample for drug testing so as to prove that
he is guilty or innocent. It reverses
the burden of proof from the prosecution to the defendant. When the police makes a so-called “reasonable
suspicion”, the person suspected cannot do nothing. He is statutorily required to provide a urine
sample to prove his innocence. Refusal
to do so is guilty per se.
However, there are existing
provisions with reversed onus of proof. Although Article 6(2) is in absolute terms, it is not regarded as
imposing an absolute prohibition on reverse onus clauses. To cut all legal jargons, such provisions need
to be justified. They are the
exceptions. It has to be proved that
such provision is necessary, useful and proportionate to combat the threat
faced by society. Does the new proposal
by ACAN meet these tests for justification?
Dangerous drugs abuse has been a
long standing problem in Hong Kong. There
was a rise in the number of abusers especially young people abusing psychotropic
substances in 2008. Various measures
were introduced to combat such rising trend. The consultation document tells us that there
is “remarkable improvement” in the drug situation. Comparing 2012 and 2008, the total number of
abusers has fallen 23%. For abusers
under 21 years old, the number has actually decreased by 54%. Thus, there is no imminent need here.
Dangerous drugs are mentally and
physically harmful to the abusers. Abusers
affect their family members and friends. They are a burden to the society. However, the question we need to consider is
whether drug abuse stands out uniquely to other threats to the society to the
extent that a provision infringing human rights has to be passed. Compare to drug trafficking and drink driving,
the harms of drug abuse mainly affect the abusers than the others. The threat to society is minimal. Compare to other addiction problems such as
alcoholism and pathological gambling, drug abuse is not uniquely and
excessively harmful.
Actually discussion should stop
here as there is no imminent need to violate human rights. For the sake of analysis, let us continue to
look at the usefulness of compulsory drug testing. Reading through the consultation paper, there
is no mention of why and how compulsory drug testing is helpful in early
identification of drug abusers. There is
no study or statistical evidence to support compulsory drug testing. There is even no estimation of how effective
compulsory drug testing will be. With
such reckless assumption, it is amazing to read in the consultation paper a
fact that 80% of the drug abusers are “hidden” in the sense that they take
drugs in their own homes or in friends’ homes. Obviously these 80% of the abusers will not be
silly enough to revert their hidden nature when there is compulsory drug
testing. It is also reasonable to
predict that many of the remaining 20% will turn hidden. So, will compulsory drug testing in public
areas be useful?
To fulfill the requirement of “being
proportionate”, the consultation paper proposes several measures to limit the
power of law enforcement officers under the Scheme. Among the measures, the most concern is on the
trigger to the new power of forcing a citizen to prove himself innocent. It is suggested that two conditions need to be
satisfied: 1) there are substances suspected of being dangerous drugs present
in the near vicinity of the person concerned; AND 2) the person’s physical
state, behavior and/or belongings show that he may have just taken drugs. The consultation document describes this
trigger as “a high threshold” and even poses a question to ask whether people
would agree to scarify catching some obvious cases for adopting such a high
threshold.
This is the most wrongful
description of the trigger threshold. Consider
that there is no imminent threat to society and the ineffectiveness of
compulsory drug testing, this trigger is disproportionately low for an
infringement on basic human rights. Both
limbs of the trigger test rest on subjective opinions from law enforcement
officials. The first requirement is only
a suspicion on the finding of dangerous drugs. Whether the substance turns out to be
dangerous drug or not doesn’t matter. For
the second requirement, it is fictitious to believe that a police officer can
distinguish drug abuse from other conditions such as alcohol consumption,
side-effects of medications or mental illnesses. Think about inside a crowded bar, the police
can invoke the new power and force all the customers to the police station when
one of the policemen has a pack of any powder in hand.
In conclusion, the RESCUE Drug
Testing Scheme is a compulsory drug testing scheme that infringe basic human
rights. It seeks to revert the
prohibition of testing of urine without consent as spelled out clearly in
current law. To create such a provision requires
strict criteria for justification. As a
matter of fact, the proposal fails in all aspects. There is no imminent threat to the society. The test itself is not useful. The new power suggested is disproportionate to
the threat perceived.
(Source: HKMA News October 2013)
