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Hong Kong: Police's Power in Question

A recent survey conducted by the Hong Kong University Public Opinion Survey Center, Hong Kong people's evaluation of the Police force has fallen to the lowest since 1997, the handover of Hong Kong from U.K to China. This is partly due to the police suppression of civic action in the past two years. According to Civil Human Rights Front, since 2006, there were more than 70 citizens, including workers, public housing residents, clerks, community workers, teachers, social workers, artists, students, legislators, being prosecuted by the Police department for participating in peaceful protests.

Two versions of a police assault case

Before the year end, the district court convicted another citizen, Julian Fung, of police assault (Hong Kong Ordinance Chapter 212, article 36b) during the annual July 1 demonstration in 2008. Julian had to stay in prison during Christmas and New Year to wait for the sentence and verdict.

Hoidick from inmediahk investigated what exactly happened on that day:

到了灣仔莊士頓道油站附近,警察想重開馬路上最右邊的行車線給汽車,於是派警員以橙色膠帶作界,收窄並限制示威者的行動範圍。這種做法令現場的示威者很反感,大夥兒鼓譟起來,也有人不服從指示。

When the demonstrators approached the gas station in Johnston Road at Wanchai, the police wanted to reopen the right line for the car and sent polices to narrow the demonstrators area with an orange tape. The action caused negative reaction, a few decided to disobey the police’ order.

According to Julian's version from Vartivist's video clip below (middle part), on that day, he saw the police narrowing down the demonstrators’ are, and one of the police officers was cutting the line more than others. So he stepped forward and asked him to widen the road for the demonstrators. The police pushed his right shoulder with his left hand. Since Julian was holding an elephant knife (a demonstration props made of light PVC), he lost his balance and lean back on the police officer, then the police fell down slowly on the ground.

Hoidick quoted from local newspapers report interviewing eyewitness of the incident after the July 1 demonstration, which was consistent with Julian's account:

《蘋果日報》記者即場訪問到的蘇先生表示:「下午4時半左右,一名指揮官指示警員開路放車行走,『嗰個警員特別拉得 aggressive(進取)啲嘅,人哋拉一條行車線,佢就拉一條半,有個戴住眼鏡拎住道具關刀嘅人就嗌話企出啲呀,挨住個警員,個警員一挨就瞓低喇。』」據報道,遊行人士見狀,「怒罵『差人插水』」。

Apple daily news reporter interviewed Mr So, which said: “around 4:30pm, a police superintendent order the police officers to open a line for the car, ‘that police officer is rather aggressive in pulling the line, others are narrowing for one car line, he is narrowing one and a half. A protester with glasses and who was holding a opera elephant knife, stepped forward and asked that police officer to move backward, he leaned on the police officer and then the police fell down.'” According to the report, other protesters who witnessed the scene cursed the police office for “pretending to fall” (a term used for cheating in football match).

The police version on the court (via hoidick's account) is:

﹝馮炳德﹞那時左手持大關刀的被告顯得好激動,走上前問點解唔開行車線,pw2﹝控方二號證人李國柱﹞解釋因為要通車,之後佢用右手肘好大力咁撞向 pw2,pw2雙手拎左膠帶,向後跌,右後背被水樽撞傷。」除了跌下的pw2警員李國柱外,還有另外兩名警員「親眼看到」馮炳德用右手肘撞向pw2。

(Julian Fung) the defendant who hold the elephant knife was very emotional. He came forward and asked why we blocked the car line. PW2 (the second witness Lee Kwok Chu) explained that because they had to open the road for the car, then (Julian) hit pw2 with his elbow. As pw2 was holding the plastic tape, he fell down and his back was hurt by the water jar. Apart from pw2, two other polices claimed that they saw Julian hit pw2 with his right elbow.

Witnesses’ testimony disregarded

Although Julian has two eyewitnesses to testify that he did not elbow the police officers, the judge chose to believe the police's version because the defendant's witnesses had participated in the demonstration and therefore shared the same political view, while the police were assumed as neutral and self-righteous.

The judge's statement has ruled out any other witness account except from the police as there are mainly protesters and police officers in the demonstration area.


The “untouchable” police

However, whether or not Julian elbowed the police is not an essential point, because according to article 36B, the police is “untouchable”. Hoidick interviewed a legal expert to explain the details:

襲警罪之所以容易中招,是因為受害者為一般人的襲擊罪,襲擊的定義會按程度分為不同的罪行,如bodily harm、aggravated assault同grievous bodily harm;但「襲警罪」裏頭的「襲擊」,無論是《警隊條例》63條或《侵害人身罪條例》36b條,都沒有等級的細分,因此用的是assault一詞在刑法上最嚴格的定義──「掂一下」都係襲擊,也因此,「掂一下」都係襲警。

It is very easy to convict suspect with police assault because in other assault crime, the definition of assault is classified according to the behavior and harm caused, such as bodily harm, aggravated assault and grievous bodily harm. However, in “police assault”, no matter whether it is in Police Ordinance article 63 or Offences against the Person Ordinance article 36b, there is no differentiation in the behaviour, therefore, the meaning of assault can be defined as “a touch”.

Police assault under article 63 usually ends up with a fine or community service, while article 36b implies imprisonment when found convicted. In the past two years, the police has applied 36b to prosecute protesters more frequently. Before Julian Fung's case, another activist Tse Pak Chai was also prosecuted with 36B, but the real story was that he was beaten up by police officers during the arrest and at the police station. The arrest process had been recorded by Vartivist (middle part of the video):

Hoidick interviewed Tse about the assault story at inmediahk:

33940說要搜我身,我問他怎樣搜,他說不是要脫光,但要搜清楚我身上所有物件,有沒有攻擊性的東西會傷害自己和其他人。我左手從衣袋裏拿出電話,說要先記下警員的編號,和要先找律師。33940隨即撲前搶我的電話,我左手緊握電話,放在屁股後面,33940隨即高聲大叫「你襲警」,同時拉起他的右拳,打到我的左胸上。我說,你咁都得?我胸口痛彎下了腰,然後我被推倒在地。我當時發現9004站在我的左手邊,倚在桌上。我對他說,你們警方竟然可以這樣屈人。他沒有說什麼。33940隨即拉起他的腳踢我的小腿,他用右腳踢完後用左腳再踢。大約踢了五下左右,一面踢一面大叫『你襲警』。

「警員14448進來,吩咐33940離開房間,說換另一位警員替我搜身。我向14448說給警員毆打,並被屈襲警,我說有冇搞錯,呢度係大陸黎既咩。他說如果呢度係大陸就唔係咁樣…….」

33940 said he had to search me, I asked him how he do the searching? He answered he wouldn't take off all my clothes but had to check whether I had weapons that could hurt others. I took out my mobile in my left pocket, saying that I need to record the police officer's number and call up the lawyer. 33940 tried to grab my phone. I hid it at my back, then 33940 yelled “you assault police”, then he beat me with his right fist on my left chest. I yelled how can you do this? I was so painful that I blended down, then i was pushed on the ground. At that time, I found that 9004 was standing on my left hand side, leaning on the desk. I asked him how can the police fake story like this. He didn't answer. 33940 kicked my limb around 5 times, while he was doing that, he kept yelling “you assault police”!

Then 14448 came in, asked 33940 to leave the room and that another police officer will do the searching. I told 14448 that I was beaten up by the police who lied about the police assault. I asked what's wrong here? am I in Mainland China? He answer if I were in Mainland China, the story would be different…

Ironically, Tse's complaint was neglected and in returned he was prosecuted with 36B in Aug 2008. Fortunately, as the police witnesses were serving in the same police station and they were in suspect of exchanging their testimonies outside the court room, the judge decided to rule in favor of Tse.

In order to protest against the police's abuse of power and article 36B, Luke produced a spoofing video at inmediahk, using the government's propaganda against people cheating social welfare to criticize the police cheating behavior:

He also wrote down his attempt in applying for an approval from the police public relation bureau to use police uniform for the video:

在香港,如你要穿著疑似警隊制服拍攝,必須向警察公共關係科申請,其中申請需要提交的資料包括故事大綱、劇本及演員穿上仿造制服的造型照片。他們批核的準則,主要是考慮有關拍攝會否展現「正面的警察形象」。

In Hong Kong, if you have to use police uniform in your shooting, you have to apply from the police public relation bureau. You need to give them the story plot, the script and the photos with police uniform. Their criteria depends on whether the video gives a “positive police image”.

Luke made three attempts to apply for the approval and his story plot was based on Tse's police assault case in Aug 2008 and nude search of Lei Dong activists in Oct 2007. The three applications were all rejected:

「……情節仍然涉及穿著類似警察制服的演員毆打市民的戲份。本處認為此等行為絕對有損香港警務處之聲譽」

The plot involved the beating of citizen by someone wearing police uniform, the bureau regards such behavior damaging the Hong Kong Police Department's reputation.

Luke pointed out that such mechanism would affect freedom of expression in Hong Kong as video and film producers can only represent positive image of police officers.

In two days, on 7 of Jan, the district court will announce the sentence. It is estimated that Julian will have to stay in jail for 3-9 months. Even though he will file an appeal, by the time the case reach the appeal court he will be in jail for a couple of months.

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