Faculty Interviewed on the Ken Tsang Police Assault Case (SCMP)

"Linked cases of Hong Kong protester and the cops charged with beating him could turn on witness credibility and each trial's speed, scholars say"

Stuart Lau, Samuel Chan and Christy Leung
South China Morning Post
17 October 2015
A decision by prosecutors to synchronise actions against an Occupy protester charged with assaulting police and seven officers who allegedly beat him up means the order of their trials could affect witness credibility, lawyers said yesterday.
     A complicating element in the legal drama is the dual identity of Ken Tsang Kin-chiu, who is in one case a victim and potential prosecution witness while in the other a defendant. He is due to appear in Eastern Court on Monday, the same day the seven policemen are due to appear in the same court, in a move justice officials insist will ensure "fairness".
     Yesterday Tsang and his lawyers spent two hours inside police headquarters in Wan Chai but later declined to comment on the reason they were there.
     Tsang's case will be handled by magistrates while the officers' case will be taken up at a higher level in the District Court.
     Cases can proceed faster before magistrates than in the District Court, and timing could bear on the outcome of each case because the credibility of witnesses could be put into doubt. "If a defendant was convicted and had a criminal record, it might affect the judge's impression on the credibility of his evidence in another case," said Jeffrey Tam Chun-kit, a barrister who has handled criminal cases arising from protests.
     University of Hong Kong legal scholar Professor Simon Young said the result of one case could offer reference for the other. "At some point, the courts will need to address the order of trials. I would think that those advising Mr Tsang would want to see the trial of the seven officers handled first," Young said. "If there are convictions, it will provide the factual basis for pre-trial motions ahead of Tsang's trial. In particular, there will be a basis to argue for a stay of Tsang's proceedings on grounds of police brutality."
     Fellow HKU legal scholar Eric Cheung Tat-ming said the Department of Justice's statement on Thursday did not say whether any of the seven officers was involved in four further charges against Tsang of resisting arrest. If they were, they could appear in his case as witnesses... Click here to read the full article and for related post on this blog, click here.

Cross-border Implications of Chinese Police Brutality

The recent trial of the men who attacked news editor, Kevin Lau, raised the issue of police brutality on the Chinese mainland in cross-border criminal cases. Without a fugitives surrender agreement, there is little law to govern the capture and return of suspects from the mainland to Hong Kong. Important legal questions remain unclear. Do suspects enjoy Basic Law rights while being questioned by mainland officers? What are the consequences in Hong Kong if those rights are violated? Common law rules of evidence require that a confession given to a person in authority must be proven to be voluntary to be admissible, meaning proof of the absence of threats, inducements and oppression when the statement was taken. A statement taken in Hong Kong may appear to be voluntary but can still be excluded if oppression from the mainland interrogation taints the Hong Kong investigation. 

     Beyond excluding confession evidence, which the prosecution may not need, are there other implications for the criminal trial? At one time common law courts paid little attention to police violence unless the conduct compromised the quality of the evidence or violated a defendant’s right to silence. Courts now show greater concern with how cases have been investigated and pursued. Judges have a duty to ensure “that the integrity of the judicial system is not compromised” and that the “administration of justice is not brought into disrepute” (HKSAR v Muhammad Riaz Khan (2012) 15 HKCFAR 232, [18]). Serious police illegality or misconduct may amount to “an affront to the public conscience” and require the criminal proceedings to be judicially stayed, meaning permanently suspended (HKSAR v Lee Ming Tee (2001) 4 HKCFAR 133, [149]).

     While the law here is still developing, recent Canadian cases have held that police brutality can amount to an abuse of process warranting a stay of proceedings. In R v Bellusci [2012] 2 SCR 509, the defendant prisoner was charged with intimidating a guard; the charge was stayed because the guard in revenge had grievously assaulted the prisoner, who was handcuffed and shackled. In R v Tran (2010) 103 OR (3d) 131 (CA), very serious home invasions charges were stayed where the defendant, after turning himself in, was beaten by two officers who broke Tran’s jaw and tried to conceal their misconduct. In a robbery case, R v Singh, 2013 ONCA 750, the court wrote: “society cannot tolerate – and the courts cannot permit – police officers to beat suspects in order to obtain confessions”. Three officers were involved in the beating and one said to the defendant, “sorry…It’s part of my job”, to which the court said, “It is not.” Cases have also accepted that police brutality can justify a reduction in sentence (R v Nasogaluak [2010] 1 SCR 206).

     Following the approach of these cases would be a strong affirmation of judicial integrity and the rule of law. But the greater hurdle in any case will be to convince the court that the abuse did in fact take place.  Written by Simon Young.  An edited version of this article was published in the South China Morning Post on 22 September 2015 with the online heading of "Upholding the rule of law: abuse of defendants no longer 'part of the job'".