0803 Arrested youth was lynched in police car, but was charged with assaulting police. Not guilty, magistrate said the polices are unreliable witness

Late night on 3 August 2019, and early morning of the following day, a clash broke out between police and protesters in Wong Tai Sin. A 24-year-old male was accused of butting a police officer in a police car. The case was opened at Kwun Tong Magistrates’ Court on 29 May 2020, with Magistrate Chung Ming-sun presiding. The defense argues that the defendant, after being arrested, asked to put his shirt on in the car, but was refused by the corresponding police, Shum Hung-yuen. Later on, he was found using the mobile secretly. After an unsuccessful attempt to seize the phone, Shum, together with another police, CHAU Kwok Ho, and PC 58602, assaulted the Defendant. The defense barrister described the situation as “the polices beating him, snatching his cell phones while saying, ‘Why are you assaulting the police?'”. The defendant’s head and face were swollen and red, his nose was broken and he had a nosebleed.

The second witness, Chow Kwok Ho, who filmed the arrest, testified that it was dark inside the car. Defence counsel, Mr. Chan Wai-yin, questioned the police on pulling down all the curtains in the car, for they already knew they were going to take the defendant. Chow Kwok Ho said he did not agree. The defense later showed footage of the defendant being escorted into a car by police who said, “Remember to pull the curtains”. Chow later changed his story and agreed that when the defendant got into the car, all the curtains were drawn.

The defence also said that Shum Hung-yuen had asked the defendant in the car, “Was it so fun out there?” After the Defendant was taken to North Point Police Station, he poured water over the Defendant and, over the Defendant’s objection, used a tissue to wipe off the bloodstains on his body. Shum then took the initiative to tell him that “my father is ‘red’[1] and my brother is ‘yellow’[2]“, “You are unfortunate to be arrested, not like people who go out to make troubles”, “I forgive you this time, don’t do it again, not everyone is as vigorous as you do”, and finally shook hands with the defendant and made up.

[1] Meaning pro-China
[2] Meaning pro-democratic

Updated on 2 June, 2020:

On 3 August 2019 mid-night and early hours the next day, police clash with protesters in Wong Tai Sin. A 24 years-old young man was arrested, accused of hitting the police with his head in the police car. Magistrate Chung Ming-sun today found the defendant not guilty and said the police officers who reported the attack were not honest and reliable witnesses.

Chung pointed out that if the sequence of events was as described by the police officer, that the defendant removed his seatbelt and butt him with his head, and then he and other police pinned the defendant down on his thighs, during which the defendant keeps swinging his head. It is unlikely that the defendant suffered such serious bruises and nosebleeds, therefore, the police officer is not an honest and reliable witness. Having regard to the fact that the prosecution’s case relied on the police officer’s ex parte testimony, the prosecution failed to prove beyond a reasonable doubt, that he found the defendant not guilty of assaulting the police officer.

The defendant, surnamed Tam (aged 24), was charged with “Assault with intent to commit offence, or on police officer” under the Offences against the Person Ordinance [3]. He was accused of assaulting Detective Constable 8235, Shum Hung Yuen, on 4 August 2019 in a police car parking outside Wong Tai Sin Police Station on Choi Hung Road, when Sham was executing his duties.

[3] Laws of Hong Kong, Cap. 212, Section 36b

Defense: Officer Ambivalence Exaggerating Injuries

In his closing arguments, defence barrister Chan Wai-yin pointed out that most of the evidence given by the prosecution’s first witness, Shum Hung-yuen, was a fabrication, “a story to justifying himself as he spoke”, and questioned Shum for exaggerating the situation. The defence said Shum Hung-yuen claimed to have been assaulted on his left face, but a doctor’s report in court today confirmed that he only had mild tenderness on the right face and left ring finger, and there was no nosebleed as mentioned by him. Moreover, Sham Hung-yuen testified that he only pinned the defendant against his thighs and did not punch him. But that makes the defendant’s injuries, such as a broken nose, unexplainable and were “intrinsically impossible”.

The defence further pointed out that Shum Hung-yuen originally said that he heard the defendant’s seat belt being unbuckled, and he was attacked while checked on him. Then he changed his story to stop the defendant from using the phone, and they struggled and got hurt. Considering that Shum was the only non-independent witness in the case who witnessed the crime, his testimony was questionable and the defendant should not have been convicted.

The prosecution insisted that the defendant hit the police officer first. The defense accused the police of punching the defendant.

The first witness, PC 8235 Shum Hung-yuen, who reported being assaulted, said he heard the defendant said “Dirty cop and their families will all die” and then suddenly heard a click sound from the defendant’s direction. He suspected that the Defendant’s seat belt had been unbuckled, then he was butted by the Defendant’s head on the left side of his forehead and the corner of his left eye. He shouted and joined hands with PC 58602 and PC 13556 Chow Kwok Ho, the second witness in the case, to subdue the Defendant. The defendant struggled at first, then calmed down and the officer locked his handcuffs again.

The defense refutes the charge of head-butting a police officer, saying the defendant was using a phone in the police car and was punched in the head by police who stopped him. He described the situation as “the polices beating him, snatching his cell phones while saying, ‘Why are you assaulting the police?'”. The defendant’s head and face were swollen and red, his nose was broken and he had a nosebleed. The defence barrister also pointed out that Shum Hung-yuen, over the Defendant’s objection, wiped off the bloodstains on his body and talk to him, “You are unfortunate to be arrested, not like people who go out to make troubles”, “I forgive you this time, don’t do it again, not everyone is as vigorous as you do”, and finally shook hands with the defendant and made up. The two police officers who testified unanimously disagreed with, did not know, or did not remember the defence version.

The Basic Law, Article 28:
The freedom of the person of Hong Kong residents shall be inviolable.
No Hong Kong resident shall be subjected to arbitrary or unlawful arrest, detention or imprisonment.

The Law of Hong Kong, Cap. 212 Offences against the Person Ordinance, Section 39:
Assault occasioning actual bodily harm
Any person who is convicted of an assault occasioning actual bodily harm shall be guilty of an offence triable upon indictment, and shall be liable to imprisonment for 3 years.

Perverting the course of justice is an indictable common law offence. The offence is committed when a person acts or embarks on a course of conduct which has a tendency to, and is intended to, pervert the course of justice (Halsbury’s Laws of England, Vol 11(1) 4th Edition)

– Making false allegations
– Providing false statements to investigating officers

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