Occupy Central

Dubious police evidence against Hong Kong Occupy protesters has shifted burden of proof in court cases, lawyers claim

Occupy defendants 'forced to provide video clips in court to counter officers' 'lies', say legal representatives

PUBLISHED : Saturday, 26 September, 2015, 12:22am
UPDATED : Saturday, 26 September, 2015, 3:45am

Lawyers who defended Occupy protesters say the need for activists to produce video clips of incidents to counter dubious police evidence in court has led to a worrying change in the burden of proof.

Under Hong Kong law it is usually the duty of the prosecution to prove the guilt of a defendant, not for a defendant to prove he or she is innocent, they say.

Police figures reveal that dozens of protesters have had their names cleared in court. Many of them proved police versions of events to be untrustworthy, or at least unreliable, according to media reports.

Police declined to update the conviction rate figures the force released on July 29, in which it said 140 Occupy protesters out of 955 arrested had appeared in court. Seventy per cent of them were either convicted or bound over, while 30 per cent were acquitted.

The most recent controversy took place two weeks ago when Lau Tsz-on, a 27-year-old chef, was acquitted of obstructing police officers in the execution of their duties.

The force claimed Lau charged into police lines, but the defence submitted amateur videos that showed Lau was actually a far-off spectator who, when police started pepper-spraying protesters, escaped and was subdued by an officer.

Ho Yu-hin, the police officer who testified in court, was reprimanded by the magistrate as totally untrustworthy.

"Strange", "dubious" and "impossible" are among the adjectives magistrates have used in dismissing police evidence in other cases against Occupy participants.

Alvin Yeung Ngok-kiu, a barrister who is a spokesman of the voluntary legal team for Occupy defendants, said the burden of proof seemed to have shifted to the defence.

"It gives rise to speculation whether police decided to prosecute in order to meet targets," Yeung said, adding that police should not submit incomplete files to prosecutors.

Randy Shek, a barrister who has handled more than 10 such cases, questioned why police made no attempt to find online evidence to support claims put forth by officers. But what shocked him most, he said, was how officers said things in the witness box - under oath - that they knew had never happened.

"When you present them with video evidence and tell them what they said was not true, they have to agree with you," Shek said. "But they are trained witnesses. When you confront them by saying, 'you were lying', they always adamantly disagree."

The Department of Justice said witness testimony could be rejected for a number of reasons: honest mistakes, faulty memories or lies. If it found any witness may have lied in court it would refer the case to the appropriate law enforcement agencies.