2017/2/17 — 13:05
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 980 OF 2015
|Before :||HH Judge Dufton|
|Date :||17 February 2017|
|Present:||Mr Daniel Marash SC, counsel on fiat and Mr David Leung SC, DDPP leading Ms Clara Ma SPP, of the Department of Justice, for HKSAR|
Mr Lawrence Lok SC leading Mr Raymond Tsui, instructed by David Y Y Fung & Co, for D1
Mr Cheng Huan SC leading Mr Edward Tang, instructed by Sun Lawyers, for D2
Mr William H.M. Lam and Mr Arthur J Chan, instructed by Rowdget W Young & Co, for D3
Mr Edwin Choy, instructed by David Y Y Fung & Co, for D4
Mr Bernard Chung, instructed by Kwok, Ng & Chan, for D5
Ms Priscilia Lam, instructed by Sun Lawyers, for D6
Mr Caesar Lo and Mr Philip Chan, instructed by David Y Y Fung & Co, for D7
|Offences:||(1) Assault occasioning actual bodily harm (襲擊致造成身體傷害)|
|(2) Common assault (普通襲擊)|
REASONS FOR SENTENCE
2. Full particulars of the offences are set out in the reasons for verdict handed down on 14 February 2017. In summary at about 2:45 a.m. on 15 October 2014 the police carried out Operation Solarpeak to clear the protestors of the Occupy Central movement. When the police reached the end of the underpass on Lung Wo Road, Tsang Kin Chiu (“Tsang”) was seen on the planter above Lung Wo Road pouring liquid on the police.
3. Tsang was pulled down from the planter to the pavement and subdued by several uniform police officers. After the uniform police officers successfully handcuffed Tsang’s hands behind his back with plastic zip ties they handed Tsang over to D1-D6, who escorted Tsang away in the direction of Lung Wo Road. On the way Tsang was picked up and carried face down.
4. Protestors were to be taken to the escort coaches and cars on Lung Wo Road for transport to the Central Police Station. D1-D6 did not carry Tsang direct to where the coaches and cars were parked. Instead D1-D6 carried Tsang to the north side of the Lung Wui Road Government Building Pump Station East Substation (“the substation”) to assault him.
5. On reaching the substation D1-D6 were joined by D7, who helped carry Tsang to the north side of the substation. On reaching the north side of the substation Tsang was dumped on the ground and immediately assaulted by the defendants, with D7 being the first one to kick Tsang.
6. D3 participated in the assault by stabbing Tsang; stamping on Tsang and kicking Tsang and D4, D5, D6 and D7 also participated in the assault by kicking Tsang. D1 and D2 did not take part in the assault but watched what happened. Tsang received injuries to his face; the left side of the neck; the left shoulder and clavicle; the left flank; the right flank and to his chest and back.
7. Every police officer has a duty to prevent the commission of a crime, even by fellow police officers. By carrying Tsang to the substation and watching their colleagues beat up Tsang, D1 and D2, the two senior officers, intended to and did encourage and support D3-D7 to carry out the assault on Tsang, intending Tsang to sustain unlawful personal violence.
8. After the assault Tsang was frogmarched to Lung Wo Road where he boarded a car. D5 and D6 sat on either side of Tsang and accompanied him to the Central Police Station. At the police station Tsang was taken to room 7 where he stayed until he was escorted by coach to the Police College in Wong Chuk Hang. While in room 7 D5, in the presence of D6, slapped Tsang on the face twice.
9. In passing sentence, I have carefully considered everything said on behalf of the defendants together with the many mitigation letters, all of which speak very highly of the defendants. D1 joined the police force in 1984; D2 in 2009; D3 in 1992; D4 in 1999; D5 in 2007; D6 in 2008; and D7 in 1998. The defendants all have long and distinguished careers in the police force earning many compliments and commendations.
10. Submissions have been made as to the unique circumstances confronting the police during the Occupy Central movement. Mr Lok SC informs the court that police officers had to work very long hours and in carrying out their duty were subject to insulting remarks and violent behaviour from the protestors. I am told 130 police officers were injured. There can be no doubt that all police officers, including the defendants, were working under great pressure during the Occupy Central movement.
11. Mr Lok SC, Mr Cheng SC and Ms Lam specifically submitted that if a prison sentence is to be imposed then the sentence should be suspended.
12. In HKSAR v Hui Man Tai the Court of Appeal said:
“Police officers in whom the public place trust to uphold the law, but who themselves break the very laws they are empowered and entrusted to uphold, have to be made examples in terms of deterrent sentencing so that others will not be tempted to follow along similar lines and so that public confidence will be maintained.”
13. The defendants have not only brought dishonour to the Hong Kong Police Force they have also damaged Hong Kong’s reputation in the international community, the assault having been widely viewed around the world and reported as front-page news in a number of countries.
14. Although Tsang had broken the law for which he was subsequently sentenced to imprisonment and the defendants were at the time acting under immense stress, there was no justification for taking Tsang to the substation and assaulting him.
15. The defendants, serving police officers who in the execution of their duty took Tsang to the substation to assault him; the multiplicity of the injuries sustained by Tsang as a result of the assault; and the damage to Hong Kong’s reputation make this, in my view, a very serious case.
16. I am satisfied a term of imprisonment is appropriate. Tsang was defenceless, his hands handcuffed behind his back with plastic ties. The assault was a vicious assault, in particular the first thirty seconds when Tsang was dumped on the ground, stabbed, stamped on and repeatedly kicked. Most fortunately Tsang did not suffer more serious injuries.
17. I am satisfied a sentence of 2 years and 6 months imprisonment is appropriate.
18. Taking into account the circumstances prevailing at the time and the great stress the police were under in handling the Occupy Central movement; that the defendants, all of clear record, have served the community as police officers; that the conviction will result in all the defendants being dismissed from the police force and the likely loss of any pensions; and the stress caused while waiting for trial, I reduce the sentence by 6 months to 2 years imprisonment.
19. Having regard to all the circumstances of the commission of the offence and that of the defendants, I am satisfied that the assault is too serious for the imposition of a suspended sentence.
20. On charge 2, I am satisfied the proper sentence is 1 month imprisonment. Although separate from the assault at the substation, considering totality of sentence, I am satisfied a concurrent sentence is appropriate. D5 is sentenced to 1 month imprisonment concurrent to the sentence imposed on charge 1.
|(D. J. DUFTON)|
 Contrary to Common Law and punishable under section 39 of the Offences against the Person Ordinance, Cap 212.
 Common assault contrary to Common Law and punishable under section 40 of the Offences against the Person Ordinance, Cap 212.
 In support of his submission exceptional circumstances were not required before imposing a suspended sentence Mr Lok SC submitted Secretary for Justice v Wade, Ian Francis CAAR 1/2015
 CACC 334/2007.
 See §3 of the Notice of Application for Leave to Apply for Judicial Review, marked ‘H (1)’ for identification.
 Tsang appealed against conviction and sentence which appeal the court was told was still pending.