Lawrence Ma explains why the recent sentencing of seven policemen for assaulting an 'Occupy' activist is not only unjust but also inconsistent with sentences handed out in earlier similar cases

The District Court judge's decision to sentence the seven policemen who assaulted activist Ken Tsang Kin-chiu to a period of two years in prison has sparked much public criticism and controversy.

Many people in Hong Kong have compared Ken Tsang's own sentence of five weeks in prison (for pouring liquid which smelled like urine from above an underpass onto police officers) with the sentencing of the seven policemen. They believe the prison terms given to the police officers are outrageously excessive.

Various police organizations and public concern groups showed strong support for the seven police officers, who are lodging an appeal against this harsh sentence.

However, pouring (non-corrosive) liquid on someone and the actual physical act of punching and kicking someone are very different offenses.

We don't examine legal cases like this from an emotional perspective. We have to look at them rationally. If people are confused by the judge's decisions, they should go back to the statute books for answers.

To appeal against their two-year sentence, the seven policemen have to prove that the sentence was "manifestly excessive". To analyze it rationally (that is, decide whether it is manifestly excessive or not) one has to look at two issues.

First, is the starting point of the sentencing too high? Second, is the sentencing in this case in line with other similar cases?

On the first point, sentencing is an exercise where the judge has to choose a correct starting point, then take into account aggravating factors (for example, whether the offender is a person in authority) to add terms or mitigating factors (for example, good character, stress, provocation, loss of employment and pensions, etc) to reduce terms.

Therefore, choosing the wrong starting point is grounds on which an appeal can be based in order to have such a harsh sentence quashed.

For example, the maximum sentence for robbery in Hong Kong is life imprisonment; the starting point for this is five years.

The maximum sentence for assault occasioning actual bodily harm is three years and the starting point is imprisonment - with no specific term. This means any prison term - as long as the offender is imprisoned even for one day or has a suspended sentence - is appropriate.

However, in the case of the seven police officers judge David Dufton chose a starting point of 2.5 years.

On the second point, in comparable cases police were sentenced to no more than seven months in prison.

Let's look at some comparable cases. In R v Kam Tin Po (1985) 1 HKC 281, a police officer in plainclothes was involved in a search for criminals during an early morning operation. He knocked on the victim's door, but was refused entry.

The victim called "999" and later some uniformed police officers arrived to authenticate the status of the plainclothes officer. After gaining entry, the plainclothes police officer became very angry and handcuffed the man and then hit him. The man fell and was indiscriminately kicked by the officer. He had bruises and abrasions all over his body.

The plainclothes police officer was charged with assault occasioning bodily harm, convicted and sentenced to seven months in prison.

Similarly, in R v Cheung Kin Tak (1995) HKCU 116, a man went to a bank in the early morning to withdraw money from an ATM machine. He was stopped and searched near a noodle shop in Hung Hom.

After the man was searched, questioned and had his identity checked, a police car arrived and a policeman alighted; he swore at the man, who swore back at him. The policeman then punched him in the stomach, and hit him on his back and head.

Three officers from the Customs and Excise Department who were having a meal in a noodle shop came outside to intervene. They said they would act as witnesses to the assault of the man.

A large group of uniformed police then arrived to surround the three Customs and Excise officers. The police officer hit the Customs and Excise officers with a torch, held them on the ground and kicked them.

They were kicked and punched while being taken to a police vehicle, inside the vehicle and then inside Hung Hom police station.

In total, six policemen carried out the assault and three were charged with assault occasioning actual bodily harm. They were convicted and two were sentenced to six months and one to seven months in prison.

The facts in these early cases clearly speak for themselves; the recent sentencing of the seven policemen in Hong Kong was clearly excessive and unfair.

(HK Edition 02/27/2017 page8)