Policing in the Post-Umbrella Movement Hong Kong：

The Unreliable Witnesses

By Regina Tsz-Ching Lam and Gloria Hoi-Ching Chan
Translated and updated by Regina Tsz-Ching Lam

中文繁體版本 The original Traditional Chinese version
(The article was first published in the September 2016 issue of SanPoYan. The authors won the University Chinese-Language Writing Prize at the 20th Annual Human Rights Press Awards for the article.)

When university student Samuel Ho Chi-sum found himself engulfed in a crowd of protesters with his girlfriend in the Mong Kok district of Hong Kong, little did he know that an on-duty constable in the vicinity would testify against him in court for an “obstructing a police officer” charge four months later.

While Ho and his girlfriend were going back home after shopping, they encountered a pro-democracy protest at the intersection of Argyle Street and Nathan Road. The tension there had already been building up for a while as the police enraged the protesters by escorting a counter-protester out with an ambulance. Some protesters tried to block the ambulance while the police hustled them back to the footpath.

“It was very chaotic. I wanted to leave, but I couldn’t,” Ho said; “People at my back kept pushing against me, and there was just no way out.” According to video footage published by online media SocRec, moments before he was arrested, Ho was holding his girlfriend from behind at the edge of the footpath while facing a few police officers.

“After the officer shoved my girlfriend, I pointed at him and said, ‘Stop pushing further.’ ”Ho said. He recalled the officer, looking infuriated, pointed to him and shouted, “Arrest him!” Ho was immediately pressed to the ground and taken to a police station. Months later, being placed on police bail, he learned that he was charged with “obstructing a police officer.”

Taking the witness stand in court, Senior Police Constable Wan Chi-kong offered his version of the story. Constable Wan said that Ho stood in the middle of the road and incited others to block the ambulance from moving ahead. He also stated that Ho turned away to escape arrest after he was given three police warnings.

However, the online footage presented by Ho’s attorney showed that little of Constable Wan’s testimony was credible. Edward Wong Ching-Yu, the deputy magistrate of the case, determined that Ho did not turn back after the police warnings and therefore did not obstruct the officer. He described Wan’s testimony as untrustworthy and found Ho not guilty.

As the police bring more Umbrella movement protest-related cases to court, the student publication San Po Yan found that in at least 14 legal cases since September 2014, magistrates determined that police testimony was untrustworthy or unreasonable.

“Chaos and disorder at the protest sites might cause confusion,” said David Tang, a Hong Kong barrister. “However, from what I have seen in the news, many police officers’ accounts are disconnected from the facts.”

As a barrister who has represented the Department of Justice in its prosecutions, Tang said the criminal conviction rate in Hong Kong saw a significant drop after the movement broke out. According to court statistics, the conviction rate of cases relating to the movement stood at 29.8 per cent. In some cases that failed to lead to a conviction, prosecutors were ordered to pay the court fee. In some others, magistrates even ruled that the defendants had no case to answer.

Tang said these circumstances are “unusual” and blamed the police for most of them. “As the burden of proof lies with the accusers,” Tang said, the police have the responsibility to collect all the evidence, including that favorable to the defendants, before bringing charges. The Department of Justice also has no right to question police witnesses before a trial.  

Had the online media reporter’s camera not captured the ambulance departure and Ho’s arrest, Wan’s testimony might have sent Ho to jail. Judges often rely on police testimonies to make their judgments because other evidence is not always available in criminal cases, said Tang. In Ho’s case, the prosecution was based entirely on the accounts of two police officers.

The repeated police practice of giving fraudulent testimony has also alarmed human rights observers who warn against the overreaching power of the police. Although the Basic Law, the mini constitution of Hong Kong, specifies the department of justice should take charge of criminal prosecutions, the police often make decisions of prosecution in most cases relating to civil unrest.

“In social movement-related cases, especially cases of obstructing a police officer, the police are both the prosecutor and the party involved,” said Chong Yiu-kwong, a lawyer and the deputy chairman of the independent organization Human Rights Monitor. The conflict of roles gives rise to unappropriated prosecutions.

Although the footage Ho found has exonerated him, four months of regular reporting to the police station, finding out about his indictment, seeking pro bono attorney services, gathering evidence, and attending trials mentally drained him.

“When my attorney said I stood little chance of clearing my name, I was petrified,” Ho said. In those months, he struggled to attend classes and even wake up in the morning. “My girlfriend, who is a social worker, urged me to seek help from a therapist,” he said.

On the contrary, Constable Wan bore little, if any, career consequence for offering unreliable testimony. He was promoted to sergeant and awarded the Long Service Medal by Chief Executive Carrie Lam, according to the 2019 Government Gazette.

The incident has also shaken Ho’s confidence in the criminal justice system. “I, personally, hold no disdain for the police,” he said. “But this is preposterous. How can they, as public servants of the people, do such things to obstruct justice?”