Comment & Analysis Law & Crime Politics & Protest

Harsh sentencing? The police should protect and serve Hongkongers, not commit criminal acts

“I support the police, but I don’t support criminals,” said my friend, nicely encapsulating the point which the supporters of leniency for the “Magnificent Seven” don’t seem to be able to understand.

For those of you who have been on another planet for the last few weeks, fairly early in the Occupy Central protests in 2014, seven policemen who had arrested a protester tied him up and carried him away to a dark corner where, supposing themselves to be unobserved, they kicked and beat him.

Seven police officers allegedly beating up Civic Party member Ken Tsang during Occupy protest last yea

Seven police officers allegedly beating up Civic Party member Ken Tsang during Occupy protest last year. Photo: Apple Daily.

The law proceeded at its customary leisurely pace but last week the seven were convicted of assault occasioning bodily harm and sentenced to two years in prison. This is as it should be. Beating someone up is a crime. Police officers should know this.

But there ensued a small storm of protest. Some of this consisted of blatantly racist comments on the judge, who happened to be English.

You really wonder what these people expected. Conviction was practically inevitable, because the whole incident was recorded on video. The most famous tape can be seen on Youtube:

This was recorded by a local television station and shown on the news. But the prosecution managed to find no less than six other pieces of relevant video, including some from a police camera.

Clearly one lesson of this sorry episode is that in public open spaces, these days, someone is not only always watching, but now that everyone has a phone with a camera in it someone is probably filming if you are doing anything interesting.

Of course a person is entitled to plead not guilty if he wishes to, and sometimes even if unlikely to be acquitted he wishes to court to understand the full circumstances, rather than settling for a brief summary of the facts before sentencing. Still it did seem that defending counsel had very little to work with.

You knew how things were going to end when the defence put forward the idea that while the policemen were clearly beating someone, the prosecution had not proven that it was the alleged victim – they might have been beating up someone else!

ken tsang police

File photo: StandNews.

As far as the sentence is concerned, judges do not pull these figures out of thin air. For most offences there is a guideline. That means the judge starts with a figure which has been endorsed by the Court of Appeal and adjusts it in the light of the particular circumstances of the case before him. If the result is too punitive the defendant can appeal. This is the way these things are usually done.

We have been offered some interesting attempts to get round this. Some critics of the judge seemed to think that the identity of the victim, Ken Tsang, his personal qualities or deficiencies, should have been considered. This is clearly an error. Officers are not entitled to beat up their captives, no matter how depraved they may be or how naughty they may have been.

Nor is there anything in the law which says that if you resist arrest, and the police then truss you and beat you up, justice requires that you and they should receive the same sentence.

Then there is the curious complaint that the “perpetrators of Occupy” were not prosecuted. This is simply not true. More than 900 arrests were made during the protests and most of them resulted in some sort of proceedings. Obviously the outcomes varied and as happens in any large group of cases some people were acquitted.

ken tsang verdict police pro-Beijing

Pro-police protesters. Photo: HKFP/Ellie Ng.

For a version which plumbs Trumpworthy depths of inaccuracy and error we can as usual rely on the People’s Daily. This started with a flagrantly misleading headline “Hong Kong expert: Judge heavily sentences police and lightly sentences Joshua Wong, harming Hong Kong’s rule of law”. Not the same judge, actually.

I have my doubts about the “expert”, a mainlander professor in the City U Law Department who has no qualifications in Hong Kong law at all. But I do not think he got it that wrong.

The professor, Gu Minkang, made plenty of mistakes of his own, though. The victim was a “vicious” suspect, he said. Not relevant. The crime was committed on impulse in a moment of extreme rage. Watch the video.

It was hard to see it as a just sentence when it met so much opposition from society said Prof Gu. What opposition? The sentence undermined the rule of law because those behind the Occupy protests had impunity, while the police were heavily sentenced. Hogwash. Nobody has impunity and the sentences reflect the circumstances.

gu minkang

Gu Minkang/People’s Daily article. Photo: City University of Hong Kong/Screenshot.

Actually we all support the police. The rule of law is a Hong Kong value. Those who wish the ends must also wish the means. There must be a police force to enforce the law. But those charged with enforcing the law must themselves obey it.

Judges tend to be quite fierce with police people who are caught breaking the rules because the justice system over which they preside requires that the police should be people of integrity, truthfulness and self-control. Much of the evidence they listen to comes from the police. They, and for that matter we, need to trust the police.

In most cases that trust is justified. But the human brain does not do averages, it does stereotypes. Many young people now have a suspicious attitude to the police and this is entirely due to abrasive interactions at public protests. The actions of the seven validate and confirm this belief, unjustified prejudice though it may be.

I did not personally think the sentences were excessive, but I was a bit puzzled that they were all the same. The policemen concerned ranged in rank from Chief Inspector to PC. This seems to imply some variation in guilt. We do not know whose idea the beating was but we know the senior officer present could have stopped it with a word. Conversely I suppose it would take an unusually brave PC, in the circumstances, to protest that he was being asked to do something illegal.

seven officers

The seven police officers. Photo: Stand News.

The excuse that “I was only obeying orders” does not wash as a defence. But in considering sentences for these young men one might have expected a discount for the fact that they were offered a thoroughly bad example by seniors to whom they looked for advice and leadership.

This case does reinforce two observations about policing in Hong Kong which have come up before.

One is that the senior management, although in the nature of these things it does not appear in court, cannot escape some responsibility. When Tang King-shin was Commissioner of Police there were a few occasions when he thought it necessary to apologise publicly for what had happened.

Actually there were only three, but his critics in the Force christened him “Sorry Sir” and objected to the idea that apologies should be made. I often wonder which of the occasions concerned was, in their view, a routine glitch for which no apology was required. Was it the occasion when motorists were pressed into service as a roadblock in the path of an oncoming road race? Was it the occasion when three policemen had a gunfight with each other in a pedestrian underpass? Or was it the lady who was raped in a police station?

Mr Tang’s successor as Commissioner made no secret of the fact that he did not think apologies were called for under any circumstances. His boys could do no wrong. As a result there was a gradual increase in the use of chemical and other weapons in political situations long before Occupy. This was regarded with some complacency but it was to be expected that some officers would draw more sweeping conclusions about what was permissible than their seniors perhaps intended.

Policemen surround the students protesting at Civic Square

Policemen surround the students protesting at Civic Square in 2014. Photo: Wikicommons.

Our leaders outside the police force might also consider whether the SAR government could have spared the time in the last 20 years to consider the implications of inheriting a colonial police force.

A police force in the pay of a foreign imperial power cannot rely on loyalty to a regime imposed by force. Instead, it adopts the military approach in which the individual’s loyalty is to his unit and his comrades within it. This works in British regiments, from which it was borrowed, and for that matter in the French Foreign Legion, where the rank and file have no political connection at all with the country they are fighting for.

In a sophisticated modern society such a force is an anachronism. The police should be part of civil society, not an isolated tribe offering its primary loyalty to itself. Most people join the Hong Kong police because they wish to serve and protect their fellow citizens. But they receive a training and indoctrination more appropriate to an occupying army.

As a result there is a tendency, when faced with a new problem, to try force first. The morning after the first evening of Occupy, when copious use of teargas had failed to clear the streets, police negotiators were deployed in an effort to persuade people to go home. This was not a success. It might have worked better if tried first. But this was not the lesson drawn by force planners. Instead we are to get water cannon and better rubber bullets.

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Harsh sentencing? The police should protect and serve Hongkongers, not commit criminal acts