Your sympathy, please, for Deputy Magistrate Samuel Yip Chung-him. Faced with an offender who had admitted to assaulting another person at a demonstration, Mr Yip decided that as it was a first offence and said offender had pleaded guilty and shown remorse, a suspended sentence would be appropriate.
So the offender left the court a free man, and will so remain unless he commits a similar offence during the period of the suspension.
Mr Yip will, I fear, now come under fierce attacks from those critics of the judicial system who believe that people who commit violent offences at demonstrations should be sent to jail.
The Department of Justice will shortly announce a request to the Court of Appeal for a more stringent sentence, which the Court of Appeal will happily provide, to a chorus of approval from the pro-government media.
The offender will then appeal to the Court of Final Appeal, which will reinstate the original lenient sentence, incurring a storm of abuse in the process. At each stage the relevant judges will be accused of grovelling to the Liaison Office or subversive sympathies, depending on which way they vote. Officials will vainly appeal for restrained comments. This is how these things are done in Hong Kong these days. But, perhaps this case will be different.
The actual fracas was recorded on video, so we can say with some confidence what happened. The victim was a member of the Labour Party. He was participating in a small demonstration at the Fanling Golf Club in favour of the notion that some of the club’s rolling acres might usefully be used for public housing.
The perpetrator, one Tong Chun-po, is a professional golfer and golf coach who was enraged by the possibility that anyone might wish, in the interests of housing people now sleeping in cage homes and other substandard accommodation, to deprive the club of one or two of its three (yes, it has three) golf courses.
The victim, a Mr Oscar Lo, was hit in a painful place – shall we say below the belt? – grabbed by the neck and pushed to the ground.
Observers who engage in the deplorable and unjustified practice of discerning bias in the system of justice may wonder if perhaps defending the sanctity of a golf course attracts more sympathy from the Bench than protests over trivial matters like democracy or freedom.
They may wonder if a court would have deployed the same quantity of mercy if the roles had been reversed: the perpetrator was a Labour Party protester and the victim a golf coach.
We are encouraged to avoid this sort of speculation and indeed there is nothing to be gained by it today.
What we may usefully do, in case any readers find themselves in a similar plight, is consider how you should handle the matter if you are accused of a crime which was filmed, with the resulting footage being, as they say, widely shared on social media.
It is interesting to compare Mr Tong’s case with that of Mr Frankly Chu, who is now routinely and accurately described as a retired policeman but was a senior member of the force when he was filmed lashing out at an innocent passer-by with his “baton” (which is the law enforcement euphemism for a club) during a post-Occupy evening confrontation in Mong Kok.
Mr Tong, knowing that the film of his burst of martial artistry was going to be shown in court, elected to plead guilty, apologise and rely on his clean record and remorse to keep him out of prison. He also, apparently, rejected the idea of community service because of problems with his arm and his knee-joints. I thought golf was supposed to be good for you.
Mr Chu, on the other hand, despite the expectation that his crime would be screened in glorious technicolour for the entertainment of the judge, elected to plead not guilty. On his behalf, one of Hong Kong’s more abrasive barristers grilled the prosecution witnesses in the vain hope of scaring up a reasonable doubt. This was not a success.
I could not help thinking that Mr Chu’s legal team would have done better by their client if they had explained to him at greater length that his actions as filmed, however justified he might have felt them at the time, clearly constituted the offence with which he was charged.
Attention would then have turned to the matter of mitigation, for which there was plenty of material. Lawyers do this so well. The speech almost writes itself: sad end to 30 years of unblemished service to the community… clean record marred by a moment of passion… totally out of character… police under great strain… defendant tired after a long shift… tense situation… only human… great remorse… humble apology to victim… commendations and medals awarded… testimonials from the Police Chief, Chief Executive, the Pope, President Trump etc… sorry for wasting the court’s time… custodial sentence not appropriate in the circumstances.
As the audience sobs in the public gallery the judge is considering the rival merits of a conditional discharge or a suspended sentence. And out into the street goes our defendant, still a free man, to tell the reporters gathered outside about his vindicated faith in Hong Kong justice.
Of course if you believe you are not guilty you have the right to plead not guilty. But if it comes to conviction and a sentence there is, as we all know, a discount for pleading guilty, a tradition of leniency on defendants who express remorse, and a discount for having an unblemished record. These can, as they did for Mr Tong, produce a sentence difficult to distinguish from a pat on the head. If you go for the Rottweiler defence you don’t get them.
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