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Occupy bystander threatens private prosecution over alleged baton assault by retired Hong Kong policeman

Victim’s lawyers say they will take action if Justice Department fails to move on a prosecution within two months

PUBLISHED : Thursday, 09 February, 2017, 5:48pm
UPDATED : Thursday, 09 February, 2017, 10:44pm

A bystander who was allegedly hit by a retired senior policeman with a baton during the 2014 Occupy protests has warned the justice minister that he is ready to lodge a private prosecution against the former officer if no action is taken against him within two months.

The legal representatives of Osman Cheng Chung-han, 27, issued an open letter to Secretary for Justice Rimsky Yuen Kwok-keung on Thursday, saying their client had been placing his trust in him over the past two years and had provided relevant information to justice officials and the police.

It also stated Cheng and his legal team were disappointed that the justice chief had not taken any action over the case.

Police watchdog reveals details of Occupy protester assault probe

“Every day we have been waiting for the Department of Justice to perform its duty within the legal system and serve as a gatekeeper of Hong Kong’s criminal prosecutions,” the open letter read. “But we are disappointed.

“Our entire legal team is ready, and we have offered legal advice to Osman ... [We will] fully support Osman with all legal measures, including private prosecution, to safeguard justice.”

Civic Party lawmaker Tanya Chan, who has been helping Cheng, said the letter served as an ultimatum as the case had dragged on for more than 800 days.

“To our understanding, the Department of Justice and the police have been liaising for two years on legal advice but there still isn’t any news,” the barrister said. “Now our legal team has issued what you can call an ultimatum to tell the Department of Justice that we will wait for two more months and if there isn’t news after that, our legal team is prepared to launch a private prosecution as one option.”

She said that it was the public’s understanding that the police or law enforcement agencies would use the same methods and pace in investigating and prosecuting suspected breaches of the law regardless of whether the suspect was the chief executive, a law enforcer or an ordinary resident.

Solicitor Jonathan Man Ho-ching said the decision was a big step for his client, who wanted to maintain a low profile while at the same time pursuing justice.

“[Cheng] is feeling very confused and frustrated,” Man said. “The investigation is complete … what are we waiting for?”

But he noted that bringing a private prosecution was a challenging process as their team would have to seek leave from a court and take up the police’s role in gathering evidence and proving its case.

“We are only lawyers,” he said. “We do not have any investigative powers. That’s a big limitation.”

The 56-year-old former Sha Tin divisional commander, Franklin Chu King-wai, was accused of hitting Cheng with his baton during a pro-democracy protest in Mong Kok on November 26, 2014.

Cheng lodged a complaint with the police complaints body. The force initially cleared Chu of any wrongdoing, which sparked a public outcry.

The Independent Police Complaints Council upheld Cheng’s complaint against Chu in June 2015, but the verdict was rejected by the Complaints Against Police Office, which later changed its stance.

The police launched a criminal probe against the former superintendent in February last year. No action has so far been taken against Chu.

Speaking at a Legislative Council panel meeting last month, the justice secretary dismissed suggestions that prosecutors had advised police not to take legal action.

“The Department of Justice already gave police advice on whether to prosecute ... The time [required to start legal action] is not completely within the control of the department,” Yuen said, adding that progress would be hindered if witnesses failed to cooperate.

A police source close to the matter said the department asked the force to conduct more investigations into the case last month and that work was still under way.

A department spokeswoman said the Complaints Against Police Office (CAPO) sought their legal advice last June after completing its investigation, to which they responded last December and in January.

“According to the department’s understanding, CAPO is following up the issue,” she said.

On top of a lump-sum of HK$3.2 million Chu received after retiring from the force in July 2015, it is understood he is receiving a monthly pension of HK$57,000.

Under the common law, a person has the right to initiate a criminal prosecution in the public interest. The complainant can either conduct the prosecution in person or through a lawyer.

The Secretary for Justice is allowed to intervene in a private prosecution by taking over as the prosecutor or preventing it from moving forward by declining to sign the charge sheet or indictment.

According to the department’s prosecution code, factors to be considered in whether or not to take over a private prosecution are the interests of public justice, the seriousness of the offence, the views of any interested party, possible duplication of proceedings, consistency with the department’s decisions and the prospects of a fair trial.

The justice secretary may also take into account the conduct of the original prosecutor.