Hong Kong policeman jailed in Ken Tsang Occupy assault case argues in appeal that he was convicted through guilt by association
- Judge concluded Detective Constable Wong Wai-ho must have taken part in attack as he was member of same team as co-defendants, barrister tells court
One of seven Hong Kong policemen jailed for assaulting a pro-democracy activist during the 2014 Occupy protests argued during an appeal on Tuesday that he had been convicted through guilt by association.
Joseph Tse Wah-yuen SC complained that District Court judge David Dufton had relied on the fact his client Detective Constable Wong Wai-ho, 40, belonged to the same team as his six co-defendants to conclude he must have taken part in the assault without considering that an outsider might have joined in.
“Membership of the team cannot be a cogent basis upon which the judge could say with certainty that [my client] had to be the seventh assailant,” Tse told the High Court.
“The so-called membership which the learned judge had created is only his assumption.”
His argument was supported by Charlotte Draycott SC, who pointed out that officers – such as her clients detective constables Chan Siu-tan, 34, and Kwan Ka-ho, 35 – were grouped together that evening in an emergency situation.
“They’re not a group of officers who had loyalty to each other,” she said.
Their clients are among seven policemen appealing an assault conviction and two-year jail term for attacking former Civic Party member Ken Tsang Kin-chiu, 42, who had been arrested for pouring liquid over other officers during a clearance operation in Admiralty on October 14, 2014.
Protesters had occupied the area as part of a civil disobedience movement calling for greater democracy in the city.
Peter Duncan SC, for Constable Lau Hing-pui, 41, noted there were at least 200 plain-clothes officers in the vicinity of Tsang’s arrest.
He argued there was a possible change in the identities of individuals who carried Tsang to the substation where he was attacked, given that footage of the incident was blocked by a vehicle for 49 seconds.
“Forty-nine seconds is, in context, quite a lengthy period of time,” Duncan said. “There is ample time for there to be a change of composition.”
He also took issue with the admissibility of the footage and complained about the identification based on enhanced images.
“We don’t know how misleading these enhancements might be,” Duncan said. “The manner of identification by the learned trial judge was so tenuous it was simply unsafe.”
Wong Man-kit SC gave the example of his client Detective Sergeant Pak Wing-bun, 45, who was identified by his T-shirt without any explanation. “The trial judge made a mistake in identifying my client,” he said.
The appeal is being heard before Court of Appeal vice-president Andrew Macrae and justices Ian McWalters and Jeremy Poon Shiu-chor.
The prosecution, led by Director of Public Prosecutions David Leung Cheuk-yin SC and Jonathan Caplan QC, will respond on Wednesday.
The other officers are Chief Inspector Wong Cho-shing, 51, and Senior Inspector Lau Cheuk-ngai, 32.