Overview of legal cases related to the HK Umbrella Revolution
including the occupations of Admiralty, Mong Kok and Causeway Bay
(to be read in conjunction with the following reports: Updates on legal cases related to #OccupyHK and What’s up with the HK police and Department of Justice?)
All information below is as of July 20, 2015.
This overview is largely based on HK media reports, which have been spotty. Some cases might have been overlooked. I would very much appreciate any reports on cases not included here as well as any corrections of mistakes.
On 15 June, the Police Violence Database of the Umbrella Movement published a report focused primarily on documenting police abuses during the occupations, but it also includes information about legal cases brought against protesters. It reports 48 out of 955 arrested during the occupations have been prosecuted as of May, and 11 of 48 defendants have been convicted. These numbers differ from those reported below, which, again, are based mostly on media reports and cannot be considered definitive.
Apple Daily has been running a regular series profiling victims of unjustifiable arrest by police.
This overview also takes into account statistics which, strictly speaking, are not part of a formal judicial process but which have legal implications, such as complaints against police.
Also, this overview is focused on statistics. Behind each statistic lies a story. For example, one thing that all of those prosecuted so far have in common is that they are low-income and unaffiliated with political parties, pro-democracy groups (such as HKFS and Scholarism) or any other institution that could offer them support. I still can’t get over that an autistic man was prosecuted (and convicted) for re-posting a message online that could be construed as threatening. Or that a clearly distraught blue-ribbon father of a yellow-ribbon sympathizing daughter was given a six-month sentence for threatening to set himself and demonstrators alight with paint thinner while none of the triad-affiliated thugs systematically attacking demonstrators in Mong Kok has been prosecuted. Seen from this perspective, the HK police and Department of Justice have gone after “low-hanging fruit”, targeting the most vulnerable.
Total number of arrests: 1,513
According to the HK government, as of 15 March, 955 people were arrested during the 79 days of occupation. 48 people were arrested after the end of the occupations. It is unclear whether or not the HK government includes blue-ribbon counter-demonstrators in its count of number of arrests.
In addition, 516 people were arrested in connection with the July 1 demonstration. 5 were Civil Human Rights Front march organizers. 511 were demonstrators at the July 1–2 Chater Road sit-in. Initially, some two dozen were charged with unlawful assembly. It was unclear why only those considering the others were presumably engaged in the same unlawful behavior, and it appears the police had singled out those whom they considered to be the leaders of the sit-in. But none of the 516 arrested has so far been prosecuted.
On July 7, 8 and 14, 2015, four prominent pro-democracy activists were charged with obstructing police in relation to an incident that took place at a demonstration way back on July 11, 2014. Raphael Wong, vice-chair of League of Social Democrats was charged on July 7; Albert Chan, People Power Legislative Council member, on July 8; and Joshua Wong, head of Scholarism, and Nathan Law, General Secretary of Hong Kong Federation of Students, on July 14.
The crime with which they’re charged is punishable by up to two years in prison. The demonstration, against the White Paper on HK issued in June 2014 by the Partystate, was held in front of the Central Government Liaison Office. An oversize copy of the White Paper was burned. (See minute 20 onward in the following of the demonstration.)
The prosecution appears likely to allege that when police attempted to put out the flames, they were blocked from doing so by the defendants. Two of the defendants were nowhere near the scene when the incident occurred, and it especially perplexing they have been charged. The fact that police have waited so long to bring the charge raises the suspicion that these are “political prosecutions”, their main purpose being to harass and intimidate the individuals and the groups to which they belong, and, by extension, to serve as a warning to others in the pro-democracy movement that they can be arrested on the flimsiest of pretexts, even a long time after the incident in which a crime was allegedly committed. It is also suspected that the prosecution is meant to deter others who may wish to demonstrate in front of the Liaison Office, a flashpoint where police have for a long time placed undue restrictions on freedom of assembly. Joshua Wong and Nathan Law are the leaders of the two most prominent student pro-democracy groups. These are the first formal charges against such high-profile pro-democracy activists, and it’s striking that they were made in relation to what appears to be a very insignificant incident which occurred two and a half months before the 79-day occupations. (Additional articles here, here, here and here.) In the first court hearing on the case on July 17, all four plead not guilty. The judge wondered why it had taken the prosecution so long to bring the case. The prosecution’s answer was that it had taken time to gather evidence, though it was unclear what evidence had taken so much time, given that video evidence was most likely to be central to its case. The case is adjourned until 28 August.
In addition to the July 1–2 Chater Road sit-in and the 79-day-long occupations, there have also been arrests related to the anti-parallel trade demonstrations, the Mong Kok Gao Wu demonstrations, and assorted other events.
There have also been arrests of people from groups in the forefront of the occupations in relation to incidents prior to the sit-in and occupations. The incidents had nothing to do with the HK Umbrella Revolution, but many suspect that the motive behind the arrests was to punish or intimidate groups that participated in the occupations and related demonstrations. These arrests were made in the week leading up to the HK government’s tabling of its fake electoral reform plan in the Legislative Council on Wednesday, April 22. Two Scholarism students were arrested, one on April 16, one on April 17, both for unlawful assembly, in relation to an incident that allegedly occurred in November 2013. Deputy Secretary General of the League of Social Democrats, Napo Wong, was arrested on April 22 for unlawful assembly in relation to an incident that allegedly occurred in May 2014.
According to the HK government, as of 15 March, 69 people have been arrested in relation to the anti-parallel trade demonstrations. 10 were charged, and later, charges against 8 were dropped, and 2 have plead not guilty to obstructing police officers and will stand trial in June. On 21 April, charges were thrown out by Tuen Mun Court against 2 anti-parallel trade demonstrators who took part in the Yuen Long demonstration of March. “Chau Chun-kit was charged with assaulting an officer, but his case was dismissed by the court after the officer was unable to recognize his attacker. Hui Lap-wang’s charge of possessing offensive weapons was dropped due to a lack of evidence.”
Apart from the number of arrests, police estimate that they required “over 900” demonstrators to present their HK identity cards to them so that their details could be recorded. Most of these were in relation to the Admiralty clearance in December, and most of those were forced to give their ID numbers to police in order to exit a cordon the police had established before conducting the clearance. Police have said little about how they are or might be using this information they collected.
On Saturday, April 25, three people were arrested in Kennedy Town on charges of “wounding police officers and interrupting them in the course of their duties” in connection with a protest against an open-top bus tour by top HK government officials to promote its fake universal suffrage plan.
On Sunday, April 26, eight people were arrested in Mong Kok on charges of assaulting a police officer in connection with protests against the HK government’s fake universal suffrage plan. Protesters temporarily re-occupied Nathan Rd. Another source reports six people were arrested for obstructing police officers.
Total number of arrestees charged with a crime (as opposed to simply released)
I don’t have the figures for this, and as far as I know, no else has published any, but so far, it is a very small proportion of the number of those arrested, several dozen at most. The vast majority of arrestees were released without charge. All of those released without charge are told by police that they can be re-arrested and prosecuted at a later date.
The Hong Kong government has reported that in 2014, overall, 1,726 people were arrested and 163 prosecuted in relation to “public order events” that took place in that year. But the figure does not distinguish between POEs related to the occupations and other POEs, nor is it clear whether the number of those prosecuted, 163, means they were prosecuted within the 2014 calendar year; in other words, could it be that some may have been prosecuted in 2015 for an offense allegedly committed in 2014?
As recently as May 13, the Security Bureau did not give precise information in response to a question from a member of the Legislative Council regarding arrests and prosecutions, stating merely that “some” of those arrested in relation to the occupations had already been convicted and, “Given that just less than half a year has elapsed since the end of the illegal occupation, a considerable number of cases are still either in the judicial process or awaiting legal advice. The HKSAR Government will continue to follow up these cases for pursuit of offenders’ legal responsibility during the illegal ‘Occupy Movement’.” The failure to give precise figures is striking given that in the same response, the Security Bureau did provide precise figures for arrests (112) and prosecutions (60) in relation to “public order events” in 2015.
Total number of arrestees charged with a crime whose cases were dropped by the HK Department of Justice before going to trial or after the trial started but before its conclusion
I don’t have the figures for this, and as far as I know, no one else has published any. It is a small number, but would include significant cases such as 1) “chalk girl”, a minor removed from her parent’s guardianship and placed in a home for juveniles but later released unconditionally back into the care of her father; 2) individuals arrested in the clearance of Mong Kok and “double-booked” for both contempt of court and obstructing bailiffs. In most of those cases, both charges were dropped and in some, defendants were awarded compensation; 3) two Occupy stewards in Admiralty who were arrested for fighting when what they really did was apprehend the people who threw animal innards at Jimmy Lai and hold them until the police arrived. In some of those cases, it appears the Department of Justice is still considering pressing charges, for example, against Joshua Wong and Raphael Wong for contempt of court.
On 22 April, it was reported that the Department of Justice dropped charges of assaulting a police officer against Chow Chung-Ki in relation to an incident that allegedly occurred in Mong Kok on 5 October after a video contradicted the police officer’s testimony that Chow had kicked him. Indeed, the police officer contradicted himself, alleging in a written statement that Chow had attacked him from the front while in court saying that Chow had attacked him from behind. This is one of several cases in which police appear to have given inaccurate testimony. In this case, the trial had actually begun, and when the Department of Justice became aware of the video, it decided to drop the case.
On 30 April, it was reported that the police said they would not seek prosecution of attackers of four journalists at a blue-ribbon (anti-democracy) rally held on 25 October 2014. The reason given by police was lack of evidence even though clear photographic evidence of the attacks exists.
The Department of Justice then said its legal advice to police was to continue the investigation, upon which announcement the police said they would do so. Their reason for doing so, they claimed, was that one of the journalists assaulted had come forward with new information. Reports emerged that in a police line-up, suspected attackers were allowed to wear shower caps and face masks to obscure their appearance.
In the case of TVB reporter Sin Chi (pictured above), the Secretary for Justice said the video evidence was “subject to different interpretations”. Three were originally arrested in connection to his attack but never charged.
This article gives an overview of some of the more notorious cases the Department of Justice decided to not prosecute in March and April.
On 6 May, the prosecution dropped charges of obstructing police officers against Lee Chin-hung and Yung Kin-wing. The two were arrested on December 1 during the police and bailiff clearance of Argyle Street in Mong Kok. The prosecution decided to drop charges after a video submitted as evidence contradicted police testimony that the two defendants had obstructed them.
On May 15, a charge of assault was dropped against Cheung Yuk-kin, an RTHK production assistant. He was accuased of punching a passer-by in Mong Kok on 3 October. Police were unable to find the alleged victim of assault. The Department of Justice concluded the evidence it had was unreliable. But this begs the question of why it decided to prosecute Cheung in the first place.
On May 27, Ma Kin-yin, 47, and Chan Man, 63, were arrested for allegedly making threatening comments towards police in a YouTube video. Ma was arrested under suspicion of “gaining access to a computer with dishonest/criminal intent” and assaulting police, Chan for assaulting police. In the video, posted in December, the two criticized police handling of the HK occupations. In an unrelated case, on May 19, People Power activist Tam Tak-chi was also arrested for ““gaining access to a computer with dishonest/criminal intent” in connection with his alleged online comments about a recently deceased leftist leader and organizer of the 1967 HK riots. Legal scholars have expressed concern about the HK police and Department of Justice misapplying the crime. It was originally intended to deal with computer hacking, not online speech. As of 31 May, two people have been convicted of computer-related crimes in relation to the occupations, one for “gaining access to a computer with criminal intent” in relation to online speech supposedly threatening the daughter of a police officer, the other, strikingly, for “criminal damage” for hacking a government website, an act to which “gaining access to a computer with criminal intent” was originally intended to apply.
On June 2, pan-democratic Legislative Councillors criticized the HK government for its use of the law, saying, “…when it was enacted in 1993, [it] was intended to outlaw only unauthorised access or modification to computer systems to primarily fight deception. It was not meant to outlaw all possible criminal intents by the use of a computer that may already be covered under other existing laws.” After the arrests and the Legco criticism, police and DoJ use of the law and police online surveillance began to get slightly more media attention, with “Hong Kong social media activists under fire…” and “You’re being watched online, activists told by police” appearing.
Leung Chi-wai is on trial for assaulting a police officer during the clearance of Mong Kok on 25 November. After going online to ask for video footage to support his claim of innocence, Leung presented video from The Wall Street Journal that shows five to six police officers surrounding him, pushing him to the ground, and hitting him with a baton. His trial continues on 15 June.
On 10 June, a judge dismissed the prosecution of Choi on charges of resisting arrest and obstructing police in relation to an incident that allegedly occurred in Mong Kok in October. The judge said testimonies by two police officers were contradictory. This is the latest in a long series of OccupyHK-related cases that have been dismissed by the judge, withdrawn by the prosecution or resulted in acquittal due to insufficient, inaccurate, or contradictory evidence by police and the Department of Justice. Choi was originally charged with possession of assault weapons. A scaffolder, he came direct to Mong Kok from work, and the police found a saw and a scaffolding knife in his bag.
On 22 June, a magistrate dismissed the case of a Polytechnic University student charged with assaulting police officers during an anti-parallel trade protest at Trend Plaza in Tuen Mun on 8 February. The testimonies of two police officers contradicted video evidence, and the officers later confessed they colluded in with colleagues in preparing testimony. The judge criticized their behavior as suspicious, unwise, and inappropriate.
On July 8, assault charges were dropped against Wong Ching-wah, a pro-democracy protester. She was accused of kicking Tang Kwok-hung in the calf in Mong Kok on January 11 during a GaoWu (“shopping”) protest. Video evidence showed that Tang was the aggressor.
The prosecutions of yellow-ribbon demonstrators charged with obstructing officers in connection with the clearance of Lung Wo Road have yet to conclude. On 26 May, one of the seven was bound over in Eastern Magistracy Court. His own account of his arrest and subsequent legal case can be found here.
On July 8, two men plead not guilty to assault in relation to an incident in which they allegedly pelted Joshua Wong with eggs outside a Kowloon court on November 27 where he was answering frivolous charges of obstructing bailiffs during the police clearance of the Mong Kok occupation on Nathan Road.
Only a few days before that July 8 hearing and the July 14 arrest appointment at Western Police Station where he would be charged with obstructing police, late at night on June 28, Joshua Wong and his girlfriend were assaulted on the street. So far, no arrest has been made. Here is Joshua Wong’s report on the assault.
Prosecutions and convictions
On May 21, SCMP reported that the Security Bureau released information on May 20 that “a total of 160 people have been prosecuted so far for various offences related to their participation in the Occupy protests,” but I haven’t been able to track down that statement. This number, to my knowledge, has not been corroborated by any other source.
Stand News reported in July that 29.8% of 67 cases related to the HK Umbrella Movement have been successfully prosecuted (versus an overall conviction rate in 2014 of 50.3%). That would be 19 convictions.
My take on this is that the HK police and Department of Justice have been under pressure from the HK government to demonstrate the illegal nature of the Umbrella Movement, as per standard HK government propaganda, in which it is routinely referred to as the “illegal Occupy movement”. Since the occupations were overwhelmingly nonviolent, as indeed the vast majority of HK pro-democracy demonstrations have always been, the HK police and DoJ have had to search hard for cases to prosecute, and the result is that they have chosen many weak cases; indeed, many of the charges seem downright petty. Police in particular have often presented insufficient, inaccurate and misleading evidence. Strikingly, the one aspect of “illegality” that the DoJ has not tested in court is “unlawful assembly”. There are many possibilities as to why they have not prosecuted perhaps the most obvious “crime”, a strong one being that they fear that the flawed Public Order Ordinance under which they would prosecute the charge would not stand up to challenges in higher courts.
According to my own monitoring, 24 out of 1,513 people arrested have been convicted. Of those, 15 are yellow-ribbon demonstrators, 5 are blue-ribbon counter-demonstrators, 2 are computer-related, 1 is a journalist, and 1 was a crazy guy (probably blue ribbon) driving a car into a crowd of demonstrators. That means 0.00991407799% of the total number arrested have been convicted, and an even tinier percentage of the hundreds of thousands who have participated in the HK Umbrella Movement. If the courts are the true test of “illegality”, then so far, the HK government has not proven its propagandistic assertion that the ‘Occupy movement’ is ‘illegal’.
On July 15, elderly So Suet-ling, a blue ribbon who assaulted a pro-democracy demonstrator, became the first woman to be convicted. All other HKUM-related convicts are men.
Charges (note: number of charges differs from number of prosecutions; some defendants have been charged with more than one crime):
7- assaulting officer
1- obstructing officer
2- obstructing bailiff
1- resisting arrest
1- behaving in a disorderly manner in a public place
1- failing to produce ID when demanded by police
4- criminal damage
4- unlawful assembly
1- obstructing traffic
1- wounding (an RTHK journalist)
1- disorderly conduct (threatening to light self & demonstrators on fire)
3- assault (in all cases on pro-democracy demonstrators)
1- obtaining access to computer with criminal intent (threatened police officer’s daughter)
1- criminal damage (cyberattacks on government website)
By far the most frequent reason for arrest was “unlawful assembly”. Significantly, only four of those arrested for unlawful assembly have been prosecuted. All four were convicted, but they were convicted simultaneously of the more serious crime of criminal damage in connection with the breaking of windowpanes in the Legislative Council building. It is unclear why the DoJ decided to press unlawful assembly charges as well. (For more on the case, see below.) Even though the HK government’s standard phrase to refer to the occupations is ‘the illegal “Occupy Movement”’, its illegality has yet to be tested in a court of law. Likewise, in relation to the Mong Kok clearances (first of Argyle Street, then of Nathan Road), the police arrested dozens for “contempt of court” (using the technical argument that court injunctions had ordered the clearances) but so far have prosecuted no one.
No police officer has yet been prosecuted. Seven officers have been charged in connection with the October beating of Ken Tsang Kin-chiu during the clearance of Lung Wo Road, but the Department of Justice has indicated no plan to prosecute them. On 24 April, Police Commissioner Andy Tsang defended the officers’ right to not cooperate with investigation. He has not defended the rights of demonstrators arrested in connection with the occupations. The police and the Department of Justice have, to public knowledge, not taken any other actions related to police violence against protesters. When video clearly showed a police officer hitting Osman Cheng Chung-hang with a baton in Mong Kok in November, police promised prompt action, but six months later, no action has been taken. Indeed, it appears that the Complaints Against Police Office (within the police force) ruled no action need be taken, a ruling with which the Independent Police Complaints Council (an independent statutory body) disagreed, sending the case back to the police for further consideration. (See below for more on the case.)
Table: Convictions related to HK occupations (as of 26June 2015; for later convictions, see below table)
On May 26, Kwok Wing-sang, 19, was convicted of assaulting a police officer in connection with an incident that occurred on November 25 in Mong Kok. Kwok Wing-sang had plead not guilty and alleged the police officer who took his statement after his arrest.
On July 2, 70-year-old blue-ribbon Man Ho-chuen was convicted of assault for snatching a yellow ribbon from 19-year-old Chan Ho-wun and poking his throat on October 13 in Admiralty. While Man acted obnoxiously, convicting him of assault seems a bit exaggerated, especially as no more than minor injury was caused. On July 16, Man was sentenced to seven days in prison but released on bail pending an appeal application.
On July 14, four protesters, Cheng Yeung, Tai Chi-shing, Cheung Chi-pong and Shek Ka-fai, aged between 18 and 24, were sentenced to 150 hours community service after having previously plead guilty to criminal damage and unlawful assembly in connection with an incident on November 18 in which they smashed window panes in the Legislative Council building in Admiralty in an apparent attempt to break in. The judge refused the prosecution’s request that the convicts pay $587,000 in compensation for the damage caused. There is little to no criticism of the conviction of criminal damage. This was one of the few acts involving destruction of property committed by pro-democracy demonstrators (and the only one to be prosecuted) during the occupations. But to my knowledge, these are the first four to be convicted of unlawful assembly in relation to the occupations, although those charges appeared incidental to the criminal damage charges; indeed, it was hard to discern the prosecution logic in laying them or the grounds on which they were convicted except for the fact that they happened to commit criminal damage where an occupation was on-going. Of the tens of thousands of candidates for prosecution for unlawful assembly, they hardly seemed the most likely, and yet they are the only convicts on that charge up to now.
On July 14, Au Yeung Tung, performance artist and assistant to Legislative Council member Frederick Fung, was sentenced to 160 hours of community service. On June 26, he had been found guilty of obstructing traffic. On September 28, hours before police attacked Hong Kong people with 87 canisters of teargas (for which, up to now, there has been no accountability; of which there has not even been an independent investigation), Au threatened to jump from the pedestrian bridge connecting Admiralty Centre and Tamar Park. Police stopped traffic from passing beneath the bridge until Au was removed. Strikingly, while the occupations obviously obstructed traffic, no occupiers have been convicted of obstructing traffic. After the sentencing hearing, Au expressed astonishment that he was sentenced to 10 more hours of community service for a nonviolent act than the four convicted of criminal damage of property for breaking windowpanes of the Legislative Council building (see above).
On July 15, elderly So Suet-ling and her husband, 72-year-old Chan Nam-sing were sentenced to, respectively, 14 days in prison (suspended for a year) and an $8,000 fine, having previously been convicted of assaulting a pro-democracy demonstrator in Mong Kok in November. As in the case of 70-year-old Man Ho-chuen, while their behavior may not have been the most civilized, whether it warranted a conviction of (or even prosecution for) assault, especially considering their age and the lack of any substantial injury caused their victim, is questionable. Most all of the blue-ribbon convictions have been of this quite harmless variety. Prosecutions of the more perhaps triad-related thuggish elements who caused bodily injury to pro-democracy protesters, especially in Mong Kok, has been notable by its absence.
On July 16, Ng Ting-pong was sentenced to 10 months in prison after having been convicted on two counts of assaulting a police officer and one count of common assault in relation to an incident that occurred in Admiralty in October. This is by far the heaviest sentence so far. The only other custodial sentence imposed on a pro-democracy demonstrator up to then was three weeks on Billy Chiu for obstructing an officer and resisting arrest. (He had actually been acquitted of assaulting an officer, but the custodial sentence was imposed partly because of a previous conviction for which he had received a suspended sentence.) Prior to the incident, police officers were reported to have said to female demonstrators, “I’ll take you to the police station and rape you.” The incident occurred the morning after demonstrators had attempted to surround HK government headquarters by entering Tim Wai Ave, where the Chief Executive’s office is located. They were repelled by police. Instead, Lung Wo Rd was occupied. During the night, police cleared it, and then around 7 in the morning, shortly before the incident for which Ng was charged with assault, hundreds of police officers cleared Lung Wo Rd a second time. They chased demonstrators up through Tamar Park. During the chase, they repeatedly clubbed demonstrators with their batons on their torsos and legs, even though demonstrators were running away from them. They clubbed demonstrators who were lying on the ground after having fallen. Some demonstrators they clubbed repeatedly. None of these incidents of assault has been investigated. They pushed demonstrators over the pedestrian bridge from Tamar Park to Admiralty Centre. Some police officers began removing banners on the bridge. They pushed demonstrators down the escalator and stairs on the Admiralty Centre side of the bridge and then some officers descended themselves to ground level, where they proceeded to act aggressively toward demonstrators, making threatening gestures and shouting hostile statements. It was at that point the incident involving Ng occurred. The alleged victim of the assault was in plainclothes. He was not even wearing a black vest with “police” on the back, as many plainclothes officers do. It was unclear to many present that he was a police officer, but witnesses said that he had shouted threatening comments to demonstrators prior to the incident. A small number of the police beatings as well as incidents that occurred that morning around the site of the incident can be seen in the first four minutes of the following video.
On 17 July, Kwong Kai-hong and Esther Poon plead guilty to harassment of HK police superintendent Franklin Chu King-wai. They had repeatedly called him on the telephone after having seen television footage of him beating protesters in Mong Kok in October. A third defendant plead not guilty and will face trial. While Kwong and Poon have been convicted of harassing Chu, Chu himself has faced no punishment of any kind for beating protesters with his baton (see below for details).
On 8 June, Wong Chi-kai was sentenced to two months in prison after having been convicted of assaulting a police officer during an anti-parallel trade demonstration at New Town Plaza, Shatin in February. He plead guilty to pulling a female police officer’s hair. This is the heaviest protest-related sentence so far and only the second prison sentence for a crime committed during a pro-democracy protest. Note: While some attention is given in this overview to legal cases related to anti-parallel trade demonstrations, only cases related specifically to the HK occupations are tallied.
Total number of acquittals: 6
Five yellow-ribbon demonstrators and one journalist have been acquitted. Of the five yellow-ribbon demonstrators, one was acquitted of obstructing police officers, the four others of assaulting an officer, and one of those four was also acquitted of failing to produce ID upon police demand. The Next Media journalist was acquitted of assaulting an officer.
17-year-old Ho Pak-hei was one of the two demonstrators acquitted of assaulting a police officer after video submitted by a passer-by contradicted police testimony. The presiding magistrate was critical of the police officer who testified that he had been assaulted and said the case should be referred to the Independent Police Complaints Council.
On May 13, Lau Tsz-kiu, 26, was acquitted of assaulting a police officer. A magistrate ruled that two police officers gave conflicting testimony about the incident, which occurred on 28 September about one hour before the police tear gas attack on demonstrators.
On May 12, during his trial for assaulting a police officer, Chan Pak-shan, 24, claimed he was beaten twice by police after being arrested on September 29 on Lung Wo Road in Admiralty. On May 19, Chan was acquitted of assaulting a police officer and also of another charge of failing to produce an ID upon police demand. In issuing his verdict, the judge was highly critical of the police, who, he said, failed to explain the substantial injuries Chan suffered in his encounter with the police. The judge said Chan’s injuries were more serious than those suffered by the police officer whom the Department of Justice claimed Chan had assaulted. Chan plans to take legal action against police for perverting the course of justice.
The composite photo below compares the injuries suffered by Chan (above), according to him due to two police beatings, and those suffered by the police officer Chan was acquitted of assaulting (below).
Total number of lawsuits against police: 4
Two men, Li Cheuk-hin and Chan Sui-wing, are suing the HK Police Commissioner because the police allegedly assaulted them and, in the case of one, detained him illegally in Mong Kok on 1 December.
Kwok Wai-hang has sued HK police for wrongful arrest and assault. Kwok was to be prosecuted on charges of assaulting a police officer and obstructing police in performing their duties in a trial due to start on 28 May, but the Department of Justice dropped all charges before the trial began. The case is related to incidents which allegedly occurred in Mong Kok on 17 October.
Leung Wai-man is suing the police for damages related to his arrest and prosecution. Leung was arrested in Mong Kok on 30 November and charged with assaulting a police officer. On 21 January, the prosecution dropped the case. Leung alleges he was injured by police during the arrest and claims he was not even involved in the demonstration. This is the fourth lawsuit brought against police for their conduct in relation to the occupations.
Total number of complaints formally made against police: 2,427, including 709 for assault
The initial report was that the Complaints Against Police Office (an office within the police department — yes, police are responsible for investigating complaints made against them) received Occupy-related complaints from 1,972 individuals. In March, the IPCC announced that they had received more than 2,427 complaints related to Occupy, including 709 cases of alleged assault by police.
Total number of complaints against police submitted by police to the Independent Police Complaints Council: 159 “reportable” cases, of which 112 remain “open” (see also here)
By “open”, the IPCC means that it is still reviewing the police investigation of those cases.
As a point of comparison, before the occupations, the largest number of complaints the council had received for a single event was 16, in connection with the visit of Li Keqiang in 2011.
The IPCC does not investigate complaints itself. The police do that. The IPCC only “observes, monitors and reviews” police handling of complaints. While new complaints to police about police are supposed to be reported by the police to the IPCC, normally, the IPCC only looks closely into those forwarded to it by the police after a long process that critics contend is meant to lower the number of complaints as much as possible. While the IPCC can require the police to re-investigate a case, it has few powers beyond that, and up to now, there have been no reported cases of the IPCC requiring the police to do so in relation to the HK Umbrella Revolution.
The IPCC has a record of dismissing the vast majority of complaints it monitors. In the IPCC’s work report from April 2013 — March 2014, among the 1,318 cases that required full investigations, 6.5% (86) were substantiated. Of 1,056 allegations of assaults received in 2011–2014, none were substantiated by the IPCC.
On May 13, a special panel of the IPCC met to examine 30,748 complaints (or what the IPCC calls “items of incoming correspondence”) that some of its members may have biased police during the occupations. The panel concluded that the complaints were “unsubstantiated”. (Panel’s full report)
It is safe to say that, taking the Complaints Against Police Office and Independent Police Complaints Council together, very little will emerge from them in regard to accountability for improper or criminal behavior on the part of the police during the occupations. Especially amongst pro-democracy activists, the IPCC is widely regarded as dominated by pro-Beijingers and there is not much faith in it. For this reason, the number of complaints received by the Complaints Against Police Office is considered the tip of the iceberg. Many are discouraged from lodging a complaint to begin with because they have no trust in the process. Indeed, one thing the occupations showed was the insufficient independent oversight of the HK police. In this respect, efforts by NGOs and other groups have clearly been insufficient. It seems that NGOs such as Hong Kong Human Rights Monitor, Civil Human Rights Front and Civil Rights Observer should have a role to play, but none has publicly mentioned any efforts to document police abuses or hold police accountable.
The motivation of the IPCC to aggressively supervise the Complaints Against Police Office and ensure accountability has been brought into question by statements by the IPCC head, Larry Kwok (who also happens to be a former member of the Guangxi Chinese People’s Political Consultative Conference) downplaying police brutality. On 1 June, he was quoted as saying that police violence amounted to no more than “isolated incidents.”
A March HKU Public Opinion Programme survey released in July showed public confidence in the IPCC has sunk to an all-time low, mostly due to the perception that it has been very inactive and ineffectual in regard to complaints about police misbehavior related to the occupations.
Strikingly, the survey about the IPCC came out in the very same week that the IPCC showed for the first time since the occupations that it was actually doing something. The IPCC ruled that police superintendent Franklin Chu King-wai assaulted protester Cheng Chung-hang when he gratuitously hit him with a baton on November 29 in Mong Kok. The notorious incident was widely broadcast on television. The IPCC decision differs from the conclusion of the Complaints Against Police Office, the office within the police force that the IPCC is supposed to “monitor, observe and review”. Now the IPCC ruling goes back to police to decide what to do about it. In the meantime, Franklin Chu is set to retire on July 23. While no action has been taken to hold Chu accountable, on 17 July, two people were convicted of ‘harassing’ Chu with repeated phone calls after having seen footage of him beating protesters (see above). To date, no police officer has been prosecuted or formally reprimanded or punished for any behavior in connection with the occupations.
Days after news of the IPCC ruling on Franklin Chu emerged, Civil Human Rights Front and Chu’s victim Cheng Chung-hang held a demonstration demanding Chu’s prosecution for assault.
On 20 July, reports emerged that CAPO rejected the IPCC’s ruling that Chu assaulted Cheng. CAPO reportedly suggested that “unnecessary use of authority” be the charge, rather than assault. CAPO’s rejection set up a showdown between CAPO and the IPCC. The IPCC head reportedly emailed its members asking them to reconsider their ruling, but the IPCC spokesperson said the ruling would not be reconsidered unless new evidence emerged. If the IPCC stands firm, then as a result of its disagreement with CAPO, it must submit a report to the Chief Executive, who can make a final ruling.
The Legislative Council, dominated as it is by pro-Beijingers in the functional constituencies voted down a proposal by its pan-democratic members to conduct an independent investigation of government and police in relation to the occupations. This means that there is no public official review being undertaken. In the meanwhile, the day after the final occupation site was cleared by police in mid-December, HK Police Commissioner Andy Tsang announced the police would conduct an investigation into what he called the ‘instigators’ of the occupations and that this would conclude within three months. There has been no recent statement by police about the status or progress of that supposed investigation. The police are also conducting an internal review of their policing, lead by one of the officers who supervised the operations. The purpose of this review is not to identify any potential misconduct but to identify weaknesses of crowd control, presumably so that the police can act more “effectively” in the event of similar “illegal public order events” in future.
Total number of applications for judicial review: 4
As mentioned above, nine months after the incident, the police officers who beat Ken Tsang still have not gone on trial. In the absence of prosecution, Ken Tsang has made an application for a judicial review of the decision by police not to release the names of the officers who beat him. His primary reason for doing so is so that he can sue them personally. He says he would prefer not to pursue this avenue in seeking justice; it would merely be a last resort if the Department of Justice does not prosecute the officers. The presiding judge postponed the initial hearing in mid-April in order to consider whether or not to accept Tsang’s application. On July 13, Ken Tsang’s application for judicial review was accepted. This is the second of four Umbrella Movement related applications for judicial review to be accepted. Ken Tsang is pursuing this avenue to pressure the police to disclose his attackers’ names because up to now, the DoJ has not initiated prosecution of the police officers. If they fail to prosecute the officers, Tsang may resort to bringing a civil case against them but needs to know their names in order to do so. He said, “The incident happened nine months ago. It should not be necessary to go through a court to get the suspects’ names… It is a criminal procedure. The evidence is substantial, the media have reported the matter, a citizen was injured but almost 10 months later, there has still been no [court case]. How can I still have confidence [in the government]?” Two months ago, Secretary for Justice Rimsky Yuen said he needed to seek advice from independent senior counsel, but since then, not a word has been heard from him about the case.
Kwok Cheuk-hin, represented by Martin Lee, is applying for a judicial review of the two reports the HK government submitted to the National People’s Congress Standing Committee in 2014 that were supposedly the basis for the NPCSC’s 31 August hardline decision ruling out genuine universal suffrage. The general argument of Kwok is that the reports to the NPCSC misrepresented the views of HK people. Kwok’s technical argument is that the reports claimed “the community generally agrees that the Chief Executive should be a person who ‘loves the country and loves Hong Kong’”, even though HK people had not been specifically consulted, and therefore the HK government had not collected their views on the matter of ‘patriotism’. The application is still under review at the High Court.
At the start of March, former Hong Kong University student union head Yvonne Leung Lai-kwok also filed an application for a judicial review of the legality of the electoral “reform” process. The High Court has yet to set the date of the first hearing to consider the application.
On May 22, Yvonne Leung’s application for judicial review of the HK government’s second round of public consultation on political reform was heard by a High Court judge. Leung wants the High Court to order the HK government to restart the consultation, arguing that it made decisions regarding the consultation with undue restrictions placed on it by the National People’s Congress Standing Committee decision of August 31 on political reform and that these restrictions are in contravention of Basic Law articles regarding the autonomy of HK in conducting its affairs. The judge reserved his decision. If leave for a judicial review is granted, the plaintiff will apply for an interlocutory injunction to stop the HK government from proceeding further.
On 5 June, the High Court rejected the application for judicial review of Yvonne Leung, former president of HKU student union, of the HK government’s second round of public consultation as not in keeping with the Basic Law.
On 6 May, former Bar Association chair Paul Shieh filed a judicial review on behalf of Kwok Cheuk-kin alleging the HK government is breaking the Broadcast Ordinance in using radio and tv campaigns to advertise its 2017: Make It Happen! fake universal suffrage proposals. According to the Broadcast Ordinance, the government is permitted to broadcast public service announcements, but the lawsuit alleges that 2017: Make It Happen! ads are political in that they urge the public to support a political initiative of the government. Since no others may advertise their views, there is a double standard which is an infringement of freedom of speech under the human rights ordinance and the Basic Law. Furthermore, the ads are misleading, for while they mention the concept of one-person-one-vote for Chief Executive, they fail to mention the Nominating Committee which will effectively screen prospective candidates on political grounds.
On 13 June, the High Court accepted an application for judicial review of HK government ads promoting its fake universal suffrage proposal as being in breach of the Broadcast Ordinance because they are political in nature. The HK government argues they are in the public interest, but the applicant, Cheung Tak-wing, says the government adds only present one side of the debate, and that in a highly distorted manner.
Lack of police investigation, or insufficient police investigation into cyberattacks on pro-democracy media and groups
There have been many complaints about lack of police investigation, or insufficient police investigation into cyberattacks on pro-democracy media and groups, most of which occurred in summer 2014. Those most widely reported are 1) cyberattacks on pro-democracy newspaper Apple Daily website, 2) cybertheft of information and documents belonging to Apple Daily owner Jimmy Lai and colleagues, and 3) cyberattacks on the Occupy Central-sponsored June 22–29 referendum on universal suffrage. Formal complaints were made to police in regard to these crimes, police made statements that they would follow up, but since last summer, there has been no news about progress in the police investigations. Meanwhile, two people have been convicted (see above, under convictions) of computer-related offenses, one for threatening the daughter of a police officer online, the other for hacking a government website.
Civil suits against Occupy Central with Love and Peace
By early May, all civil suits brought against Occupy Central with Love and Peace were dropped. OCLP was blamed by several businesses for loss of business during the occupations. The suits against OCLP for damages were originally filed in small claims court. OCLP argued that it was inappropriate to file there. The judge ruled on OCLP’s behalf and ordered that the suits be filed in district court instead. The plaintiffs decided against doing so.
United Nations oversight of Hong Kong government and police policies and practices
The United Nations Committee against Torture has submitted to the Hong Kong government a long list of questions in preparation for a hearing in its periodic review of China and HK scheduled for 9 November. It asks about “police attacks and excessive use of force by police against peaceful protestors” during OccupyHK, and in particular the beating of Ken Tsang. It also asks about the number of arrests and the treatment of arrestees in detention. It refers to its previous recommendation that a “fully independent mechanism mandated to receive and investigate complaints on police misconduct” be established and asks for an update on efforts to do that (the short answer is that no efforts have been undertaken). And it asks many critical questions about the Complaints against Police Office and the (not really) Independent Police Complaints Council.
Report of the Police Violence Database of the Umbrella Movement
The Police Violence Database of the Umbrella Movement was formed in December and published its report on 15 June (see also “Civil groups urge police reforms after damning Occupy report”). The group was set up to collect and publish information and evidence related to police abuse of power. Its report is the single largest source of information on the subject yet to be published. The group will submit the report to the UN Committee Against Torture, to be included in its periodic review of HK (see above). It claims 2,067 people could have been physically or psychologically hurt by police actions, including about 707 who called counseling hotlines seeking help. 109 cases were classified as serious and required psychological help. 26 protesters reported having been sexually assaulted.