The HK police tear gas attacks one year on: impunity and many unanswered questions (+ remembering HK people’s reactions of condemnation a year ago)

The following is excerpted from “HK one year after the start of the occupations: injustice and complete lack of accountability.”

Recently the new HK police commissioner warned HK people against any “misbehavior” related to the first anniversary of the start of the occupations. Venturing to speak on behalf of HK people, though he is not their representative, he said HK people don’t want another Occupy. Well, I thought, if they don’t, then maybe you shouldn’t attack citizens with teargas.

His statement, while rather innocuous, was in keeping with the general obliviousness of the HK government and top police officers. It showed just how little they have learned from the past year and, therefore, just how necessary an independent investigation of HK government and police conduct related to the occupations is.

Just after the last of the three occupied sites, Causeway Bay, was cleared by police in December, then police commissioner Andy Tsang announced the police would conduct a three-month investigation into the “principal instigators” of the occupations. There was never any subsequent announcement about the completion of that investigation, and it is unclear what ever became of it. But, again, I thought to myself, well, look no further than the mirror! The police were apparently interested only in conducting criminal investigations of demonstrators but not in conducting investigations into their own conduct, not even when it appeared criminal, as in the infamous beating of the demonstrator, Ken Tsang. (One year on, while the eight police officers involved were arrested and suspended from duty, no decision has been made as to whether or not to prosecute them.)

There is quite wide consensus amongst most everyone but the HK government and police that the main precipitator of the occupations was the hours-long police tear gas attack on HK citizens of September 28, 2014. To mark the first anniversary of the occupations, a rally will be held, at the center of which is fifteen minutes of silence beginning at 5:58 pm on September 28, 2014. The time marks the moment the tear gas attack commenced, thus indicating that for most people, the tear gas attack is synchronous with the beginning of the occupations.

Amazingly, to this day, almost nothing is publicly known about the tear gas attacks. Who ordered them? Was it someone within the police force? If so, who? Was it someone in the HK government? If so, who? Was it someone from the Partystate? If so, who, and how? This is a basic question that must be answered in order to merely begin the process of accountability. Days after the tear gas attacks, an interview appeared in SCMP with an anonymous police superintendent (in a police station, and with the permission of his superiors) who claimed that he was the immediate supervisor of the officers who fired the tear gas and that he had ordered the attack without consulting his superiors. As the one and only explanation of the attack, this is far from sufficient and hardly credible. Even assuming his assertion was true, that would reflect poorly on the police, allowing a police officer to take such a momentous decision without consultation with superiors. It seems more likely the top police officers, the HK government and the Partystate are hiding behind that one relatively low-ranking officer.

Even on basic points of supposed “fact”, the details of the tear gas attack are unclear. At one point, the police announced that there were “87 rounds” of tear gas. Since then, it’s become almost common knowledge that 87 canisters of tear gas were fired. All over the city you can find the silkscreen print of 87 on umbrellas and t-shirts to commemorate the attack. But we really don’t know whether that’s true, or whether 87 rounds means 87 tear gas canisters or something else. None of that has been independently corroborated or properly investigated, nor has the police ever given any detailed account of the attack.

The only HK government and police justification for the tear gas attack was that it was needed in order to get demonstrators to move back from police cordons. But taken at face value, this explanation makes almost no sense. To begin with, if police are worried about demonstrators pushing up against their cordons, why would tear gas, fired into the indeterminate distance, be the best means of getting those only centimeters away from the police to move back? Presumably the idea was that if those behind the people in the front lines were dispersed with tear gas, then perhaps those in the front lines would move back too, but that has never been explained, and it still seems rather far-fetched. On top of that, the tear gas attacks went on for hours, long after the justification of using tear gas to force demonstrators to move back from police cordons could be credibly made, for by that point, there was no situation in which demonstrators were too close to police cordons. So even assuming the police’s justification makes sense for the beginning of the attack, it makes no sense for the rest of it. Indeed, past a certain point, it appeared that the police were shooting tear gas randomly because they didn’t know what else to do.

Apart from that, assuming the police intended the tear gas attack as a crowd control measure, the police has never explained why its measure failed so miserably as to essentially trigger the very last thing it wanted to see, the occupations. Putting aside issues of rights and legality for a moment, what kind of bad policing is that?!

Indeed, from a strictly policing perspective, the police made a series of bizarre and poor decisions that lead up to that catastrophic one, including the following: 1) they took more than twelve hours to clear from Civic Square the 61 students who were occupying it, 2) while they waited, they used pepper spray indiscriminately on those outside of Civic Square who the police claimed were assembled illegally, thus provoking more people to come out in support of their fellow citizens under attack, and 3) they prevented access to Tim Mei Avenue where the newly arrived demonstrators wished to go, thus creating an impossible crowd control situation on Harcourt Road that lead to demonstrators stepping out into the road, since they had nowhere else to go, so crowded had the sidewalks lining the road become. Then they fired the tear gas. If you didn’t know better, you’d almost think the police deliberately created the occupations through their blunders. And yet, no investigation. As far as we know, there was not even an internal investigation from a strictly policing point of view. In March, such an investigation was announced, but no further word was heard of it.

In the absence of a transparent independent public investigation determining to the contrary, there exists strong suspicion that the police were ordered to attack citizens with tear gas by their political superiors in the HK government and/or Partystate. If so, then rather than being a law enforcement decision, the tear gas attack was a political decision. The people of HK deserve to know whether or not this was the case. If it was, the implications are grave, for it essentially means that the HK government turned the police from a law enforcement agency into its own private militia to defend its interests. Indeed, ever since, amongst many HK people, the police has been perceived as a guard dog of the regime. If the police force truly wishes to clear its name, the best way to do so would be to establish exactly how the decision was taken, unless, indeed, it was a political decision and they wish to keep that hidden.

There are four basic principles for judging police use of force, according to the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials and outlined in the new Amnesty guidelines for implementation of those principles. They are legality, necessity, proportionality, and accountability. In other words, is the force used for a lawful law enforcement purpose (as opposed to, for example, defending the political interests of the regime)?; what necessitates force being used at all and what determines how much force should be used?; is there a balance between the benefits of the use and the possible consequences and harm caused by its use? These principles should be used as the criteria to judge the HK police tear gas attacks and other cases of police use of force during the occupations.

As regards the legality of the tear gas attacks, only a day after they occurred, HKU law professor Simon Young examined them against the backdrop of HK law and concluded, “Thus it seems the Hong Kong Police Force have more than a clear case to answer to justify their use of force on the protesters.” The HK police still have not answered that case or explained how they legally justified their use of force.

It seems quite clear to me and to many an HK person that the tear gas attacks were neither necessary nor proportionate. As concerns necessity, they achieved the exact opposite purpose they presumably intended. As concerns proportionality, HK demonstrators were peaceful. There was not a single act of violence or destruction of property, impressive considering the situation and large number of people. Police claimed demonstrators were threatening police cordons. But video evidence does not suggest this, and they were certainly not doing so through either threat or use of violence. At innumerable demonstrations down through the years, demonstrators stood close to police cordons without police deeming it necessary to attack them with tear gas for doing so. Prior to the attack, police had raised their infamous flags declaring the assembly “unlawful”, but they never gave demonstrators an opportunity to assemble elsewhere besides the road, for example, in nearby Tamar Park, which at the time the attacks commenced was mostly empty.

Indeed, the police tear gas attacks need to be set in the wider context of possible infringements of freedom of assembly that had occurred for days leading up to the attacks. The student class boycott, scheduled for September 23 to 26 in Tamar Park, was kicked out of the park on its last day, the 26th on the grounds that, as the Leisure and Cultural Services Department put it, groups could reserve park facilities for up to three days maximum, a rule that up to then no one had ever heard of (officially sanctioned events run for upwards of a week or more on a regular basis in Victoria Park), and that another group had requested use of the park on the 26th. No one was surprised to learn it was a pro-Partystate group. That group was granted permission to use the park on the 26th, not even to hold an event but to make preparations for October 1 celebrations, though that date was five days away. As it turned out, the group hardly used the park at all that day, just delivering its equipment but not really getting going until the weekend, the following day. While there were perhaps one or two dozen members of the pro-Beijing group in the park setting up, the students had no recourse but to crowd onto the sidewalks along Tim Mei Avenue on the last day of the class boycott when there was an even larger number of students than on previous days since it was the only day of the secondary student class boycott and many secondary students joined. It was pathetic to see how squeezed in they were, sitting on the sidewalk in neat rows in their school uniforms. They were participating in a full day of lectures, debates and discussions while nothing was occurring in the park from which they’d been evicted. It was that evening that the students “reclaimed” Civic Square — reclaimed because they were going into a place that had been free for the public to use only two months before, when the government made the abrupt decision (taken without so much as pro-forma public consultation) to seal off the public space from the public and erected a high fence around it. Then, when supporters of the students gathered on the sidewalks outside the square along Tim Mei Avenue, where the students had formerly been allowed to gather for the last day of the boycott, the police declared their assembly “unlawful” and used pepper spray indiscriminately against them, though, again, they were entirely peaceful and nonviolent. And finally, when more people arrived to support them, numbering in the thousands, police did not allow them to enter Tim Mei Avenue nor did police make any effort to accommodate them or suggest an alternative space (such as Tamar Park). All told, the HK government and police had denied demonstrators use of Civic Square, Tamar Park, and the sidewalks of Tim Mei Avenue and had barred people from entering Tim Mei Avenue. So where they hell are they supposed to go then? The street, obviously. This pattern must surely constitute unreasonable restrictions on the freedom of assembly, especially given the fact that, to emphasize, the demonstrators were entirely peaceful and nonviolent.

The crowd clearly had a right to assembly peacefully and it was the responsibility of the police to facilitate them exercising that right in an orderly manner, not to prevent them from doing so, though the latter appeared to be the police’s intent. Indeed, the police, at least in terms of the orders given from above, appeared to treat the demonstrators as their adversary, if not downright enemy. The perception of demonstrators as the enemy appears to be an attitude that began to be inculcated in at least some members of the police force some years back, roughly corresponding with the former police chief Andy Tsang’s tenure, and a thorough independent investigation would look into this matter of police culture: Were there practices, statements or orders that encouraged police to regard demonstrators as an opponent or adversary? Were any orders given that were based on this perception? The July 1 pro-democracy march of 500,000 people was a case in point: For the first time ever, five march organizers were arrested, one for idling the engine of the lead vehicle of the march! Once again, the huge march was peaceful and nonviolent — the organizers should have been praised for holding such an orderly march, but instead they were arrested. Police actions appeared exceedingly petty, to say the least, and seemed to reveal an animosity toward demonstrators on the part of top police officers.

In this sense, the tear gas attacks were the culmination of a series of decisions made by the HK government and police that resulted in infringements on freedom of assembly around government headquarters. In a sense, with the occupations, they got what they were asking for. From this angle, the police use of tear gas was a desperate attempt to correct previous blunders it had made. It could hardly be considered proportionate.

As regards the fourth principle, accountability, there has been none. Up to now at least, the HK government and police have clearly failed where that principle is considered, not having made a single effort to investigate matters related to accountability.

Indeed, what the past year has made clear is the complete inadequacy of the sole mechanism (short of criminal prosecution) that exists that for accountability regarding police behavior. That is the Independent Police Complaints Council, which monitors the Complaints Against Police Office, an office within the police force. Complaints against police must first be made to the police (CAPO), which then decides which complaints are “reportable” and sends them on the IPCC. Of the hundreds of complaints against police related to the occupations, CAPO ruled 172 “reportable” and forwarded 150 to the IPCC. The IPCC has reported it is actively investigating 16. Up to now, the IPCC has amazingly considered only one complaint actionable, the infamous case of Police Superintendent Franklin Chu gratuitously beating a demonstrator with his baton in Mong Kok. It was a pretty clear cut case, well-documented with irrefutable video evidence. Indeed, the IPCC, against intense political pressure, ruled that Chu had assaulted the demonstrator. The police disagreed. The IPCC has no power to impose its decision upon the police or in any other way hold the police to account in cases of disagreement. In other words, all the police have to do is disagree, and nothing happens. In cases where the two disagree, the Chief Executive is the only one with the power to make a decision. Don’t expect one from him any time soon. The Franklin Chu case was the first time in years that the IPCC had attempted to hold the police accountable, and it failed. As an accountability mechanism, it is little more than a charade.

Apart from this mechanism, there are only criminal procedures. The eight police officers who were filmed beating Ken Tsang after having arrested and handcuffed him were arrested and suspended from duty. But nearly a year after that occurrence and months after the police apparently finished its investigation and sent its report to the Department of Justice, there has been no word as to whether or not the latter intends to prosecute. So far, a dead-end there too.

In short, even in the most clear cut and obvious individual cases of illegitimate if not criminal use of force, there has up to now been no accountability.

This is not to even consider cases of what appeared to be systematic illegitimate use of force of the kind that leads one to suspect that frontline officers were given orders to act in such a way, cases such as officers aiming baton blows at demonstrators’ heads in Mong Kok, or officers beating fleeing demonstrators from behind while clearing Lung Wo Road, or the many cases of indiscriminate use of pepper spray.

But going back to the tear gas attacks for a moment longer:

Some might think, What’s the big deal? After all, no one was killed or even seriously injured. Police do much worse many other places in the world. But for HK, in the HK context, it was a cataclysmic, paradigm-shifting, historical event. A year on, it may be easy to forget just how profoundly shocking those attacks were to virtually the whole HK population. After all, it was the first time since the leftist riots of 1967, which involved a considerable degree of violence and terrorist bombings on the part of the demonstrators, that the HK police had attacked its own people with tear gas. In the days immediately after the tear gas attack, people across the political spectrum (with the notable exception of the stalwart pro-Partystaters) expressed their indignation, consternation, outrage.

In one of the strongest statements it’s ever made, the Hong Kong Bar Association said it was “deeply disturbed by, and deplores and condemns, the excessive and disproportionate use of force” by police. It went on: “There can be scope for disagreement on the underlying political debate or demands leading to the demonstration. Some demonstrators may have committed criminal offences… However, none of the above matters justify the use of excessive or disproportionate force by police against unarmed civilians as a matter of law and common decency.”

Peter Mathieson, the president and vice-chancellor of HKU, in an email to students, staff and alumni, said HKU “profoundly regrets the escalation of events in recent days. We condemn violence of any kind by any party. We cannot understand the use of tear gas yesterday: the police and the government are accountable for that decision.”

23 pan-democratic Legco members issued a joint statement calling for an emergency meeting to debate a motion to impeach CY Leung. The statement said, “We urge the administration to stop suppressing the people violently, it should talk to the people; it should also re-open Civic Square and resume the people’s reasonable right to use the area.”

Legco member Wong Yuk-man said, “Not a stone or a glass bottle has been thrown over the past week, but police decided to resort to tear gas. All people did was raise their hands.”

Former Chief Secretary Anson Chan said: “This is a sad day for Hong Kong. Pictures of our Police Force firing pepper spray and tear gas into the faces of unarmed protestors will shame our government in front of the whole world.”

In all, pupils and teachers from at least 31 secondary schools went on strike to protest the police attack on civilians.

Lee Shing-ho, a co-organizer of the strike at CNEC Lee I Yao Memorial Secondary School, said, “The senior students took the initiative to leave their classrooms. This is not a strike led by the teachers. We want to protest the police’s violent behavior.” Liu Cheuk-laam, from SFTA Lee Shau Kee College said, “We’re in a totally different situation now after the tear gas. All students should protest.”

The Professional Teachers Union, the largest union in HK and one with a long pro-democracy history, called on teachers to go on strike. PTU president Fung Wai-wah said, “We’re talking about what’s right and wrong… It’s important to let students discuss and express their feelings. Teachers cannot escape from this.”

Don Chan Hing-lung, chairman of the Swire Beverages Employees General Union, said 200 delivery workers at the Swire Coca-Cola were on strike to support the civil disobedience movement. “We don’t care if we lose money. We are here for the future. If we don’t come, there won’t be one.”

A spokesperson for Swire Coca-Cola was amazingly understanding, stating, “delivery staff members of Swire Coca-Cola HK who are members of a union have been on strike today and staged a sit-in outside the Siu Lek Yuen plant… The Company understands that it is an action in response to union calls for strike in support of the Occupy Central protests. The strike was initiated by the related staff of their own volition and the company has expressed understanding about the action.”

Spencer Wong, chief executive of advertising company McCann Worldgroup Hong Kong, said in a message to his staff, “It’s up to you whether you come to work of not. The company will not punish anyone who supports something more important than work.”

About 1,000 social workers and social work students gathered at Polytechnic University to protest police violence and show their support for the movement. Social worker Simon Lai said, “I could not believe that the police used tear gas against student protesters… The students were not armed. There were tens of thousands of them yesterday and the tear gas could have led to a stampede.”

It was one of those brief moments in history when virtually an entire population was unified in condemnation.

The HK government decided the best thing to do was to just wait it out. It stuck tightly to script: appropriate force, appropriate force, only occasionally slipping up: Chief Secretary Carrie Lam once referred to the police attacks as “appropriate violence” but her press office immediately corrected the slip.

The government apparently thought it could just ignore the problem until it went away. But when you don’t deal with a serious problem, it festers, mutates, becomes worse, metamorphoses. In this case, it has resulted in a serious lack of confidence in the police force as an impartial law enforcement agency. The latest HKUPOP survey in June on the popularity of the Hong Kong disciplinary forces and the PLA Hong Kong Garrison showed police popularity at its lowest since 1997, when the survey began, even lower than in December 2014, when the occupations concluded. The HK government and police have clearly not understood that police actions during the occupations have seriously undermined public confidence, and as recent statements suggest, intend to continue to bury their heads in the sand.

Yet, except when they were at their worst, I often found myself sympathizing with the police (at least the frontline officers, at least the ones who didn’t violently attack protesters; their superiors are another matter) for they were put in the difficult position of defending an unlawful government intent on continuing to deny its citizens the basic legal and human right of genuine universal suffrage. A police force is meant to serve and be accountable to the citizens, but in this case, it served an unlawful government defending itself against the citizens.

25 September 2015

KTG

Written by

Author of ‘Umbrella: A Political Tale from Hong Kong’ and ‘As long as there is resistance, there is hope: Essays on the Hong Kong freedom struggle…’

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