Occupy Central

Retired Hong Kong policeman in Occupy assault case acted in good faith and not liable under ordinance, defence says

Lawyer for Frankly Chu argues in pretrial that wordings of Public Order Ordinance protected former superintendent

PUBLISHED : Friday, 09 June, 2017, 2:50pm
UPDATED : Friday, 09 June, 2017, 11:25pm

Hong Kong courts have no jurisdiction to try a retired policeman accused of striking a bystander with a baton during the 2014 Occupy protests, according to defence lawyers citing an argument raised for the first time in 131 years.

The defence emerged at former superintendent Frankly Chu’s pretrial review on Friday. His case is set for November, three years after the incident during the pro-democracy sit-in.

Chu’s counsel Peter Pannu said provisions in the Public Order Ordinance stipulated that any person who uses force necessary for any purpose in accordance with the ordinance shall not be liable in criminal proceedings even if such use of force kills a person.

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Pannu, a former police officer who went on to become a barrister, argued such wordings suggested the courts had no jurisdiction to try his client.

He cited another clause stating that no person acting in good faith under the ordinance’s provision shall be held liable for any acts in the exercise of his duty, or for public safety, or the defence of Hong Kong.

The defendant is not liable to be found guilty ... as long as [he] is acting in good faith
Peter Pannu, defence counsel

“This means the defendant is not liable to be found guilty ... as long as the defendant is acting in good faith,” Pannu told magistrate June Cheung Tin-ngan at the West Kowloon Court.

Prosecutors, led by assistant director of public prosecutions Ned Lai Ka-yee, did not respond.

The immunity clauses in the ordinance originated from its earlier form in the Peace Preservation Ordinance enacted in 1886. Pannu claimed that since then there had been no officer prosecuted over police power exercised in good faith under situations of public order.

Chu, 57, earlier pleaded not guilty to one count of assault occasioning actual bodily harm, an offence punishable by three years’ imprisonment.

The former Sha Tin divisional commander looked grim in the courtroom, which was packed with his supporters, watched over by a dozen police officers, security guards and judiciary staff members. Outside, more officers guarded the building.

Chu’s case rests on whether force had been applied in his actions and whether such force was unlawful.

Among other issues, the defence is also seeking the prosecution’s agreement on a chronology of events from the start to the end of the protests. Pannu argued this would help the court understand Chu’s mindset and role in preventing protesters like his alleged victim, Osman Cheng Chung-hang, from reoccupying the streets.

“[Cheng] is lucky he’s not even arrested for contempt of the injunction,” Pannu said, referring to a court order for clearance of blockages at the protest site.

The order was obtained by taxi and minibus drivers who claimed their businesses were being affected by the protests, which had blocked sections of Nathan Road and Argyle Street.

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“The defendant is part of the contingent company responsible for a clearance attempt,” Pannu said.

But Lai said that was not relevant to the alleged offence on the night of November 26, 2014 and pointed out that police were only authorised to assist bailiffs in the clearance, and the bailiffs were not enforcing the injunction that night.

Also in dispute is the use of videos as evidence, as Pannu expressed concern that the court might be influenced by “extremely sarcastic” and “contemptuous” voice-overs. While there will be no jury and the magistrate assured that only visuals would be relied upon, Pannu said prosecutors were still obliged to avoid using prejudicial materials.

“Unless [the prosecutor] is yellow too,” he said, referring to the symbolic colour of the civil disobedience movement.

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The magistrate replied: “No, no, no, you don’t say these things in court.”

Prosecutors have a list of 13 witnesses.

But Lai said they might only have to summon four of them, including the alleged victim, a doctor who examined him and a pathologist.

The case is set for a five-day trial beginning on November 6, with a second pretrial review on July 14 for the court to decide if a preliminary hearing is needed for arguments raised by the defence.