No matter what the RESCUE Drug Testing Scheme is named, it is a proposal for compulsory drug testing. No matter how the compulsory drug testing scheme is presented, it is a breach to fundamental human rights.

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)