On 21 January 2019, the Court of Final Appeal dismissed the application for leave to appeal against both conviction and sentence by a former Superintendent of Police (the “Applicant”). He was convicted for striking a man (“PW1“) with his baton during the Occupy Central protest movement, causing actual bodily harm and sentenced to 3 months’ imprisonment.
The Applicant sought leave to appeal on the “substantial and grave injustice” limb of the Court of Final Appeal Ordinance (Cap 484), s 32(2), advancing 3 grounds:
- That the Court of First Instance had erred in failing to treat the appeal as a proper rehearing.
- That the courts below had applied the wrong test in assessing whether the applicant’s blow was unlawful given the context of his duties and powers as police superintendent.
- On a proper reevaluation of the facts and applying the correct test, the court ought to have found that the applicant’s use of force was not unlawful and ought to have rejected the finding that actual bodily harm was caused to PW1.
Upon evaluation of the judgment of the Court of First Instance, the Appeal Committee rejected the first ground, holding that counsel on both sides had made detailed submissions on the evidence on appeal and the judge had engaged thoroughly with it. He did not fail to conduct a proper rehearing.
In respect of the second ground, the Appeal Committee rejected the submission that the test in Attorney General for Northern Ireland’s Reference (No 1 of 1975)  AC 105 was applicable in Hong Kong. The Court found that the Northern Irish case was a “very different case” factually. In addition, police officers in Hong Kong are expressly authorized to use “such force as may be necessary” pursuant the statutory scheme laid out in the Public Order Ordinance (Cap 245).
In any event, the Applicant fails under both the purported Northern Irish test and the statutory regime in Hong Kong because the lower courts have found as a matter of fact that the Applicant did not honestly believe and had no reasonable basis for believing that his use of force was necessary or justified.
Having rejected the first and second grounds, the Court found it unnecessary to deal with the third ground.
As to sentencing, the Appeal Committee refused to review the sentence of 3 months’ imprisonment, reiterating that it only reviews the level of individual sentences passed in exceptional cases where some point of legal principle is involved.
The Applicant was represented by Charlotte Draycott SC, leading Peter Pannu and Benson Tsoi, instructed by Chong & Partners LLP.