A Hong Kong court has overturned the common assault conviction against activist Avery Ng, who was charged after trying to throw a fish sandwich at former chief executive Leung Chun-ying. Ng’s three-week jail sentence was also quashed.

In September 2016, Ng threw a “smelly fish sandwich” at Leung in protest while Leung was on his way to vote in the Legislative Council election. Leung ducked, and police officer Lau Wing-kwan blocked the sandwich with his arm.

Avery Ng. File photo: inmediahk.net.

Ng was found guilty of assault in 2017 and was released on bail pending an appeal. The magistrate said at the time that the jail sentence was meant as a “deterrent” against protests using “violent means.” Ng later appealed the ruling.

On Wednesday, High Court judge Joseph Yau said it was “beyond question” that Ng’s actions constituted common assault against Leung. However, the Department of Justice had chosen to charge Ng with assaulting the police officer, instead of assaulting Leung.

The judge wrote that there was not enough evidence to prove Ng had “assaulted” the policeman in the legal sense.

“If [Lau] knew that the sandwich would not hit him, and was not worried about being assaulted on the scene, but actively stretched out his arm to ‘block’ the object, then this clearly does not constitute assault,” he wrote.

Since the prosecution did not fulfil its burden of proof, the judge found Ng’s conviction to be unsafe and unsatisfactory.

The 22-page judgment on Wednesday also included a passage where the judge expressed confusion over the prosecution’s tactics.

“This court is mystified over why the prosecution did not directly charge [Ng] with assaulting Leung Chun-ying, and instead chose the second prosecution witness [Lau] as the victim,” Yau wrote.

The judge said he would not speculate over the prosecution’s motives, but said it would be “discomforting” and “questionable” if the move was made to accommodate the then-chief executive.

“If the decision was made because Leung Chun-ying was the chief executive at the time, and the prosecution wanted to avoid summoning him as a witness, then the prosecution would have made an apparently unreasonable decision based on one individual, or based on the need to cater to one individual.”

Speaking after the judgment, Ng told reporters he was shocked and surprised by the result. The court had disagreed with Ng’s lawyers on their two grounds for appeal, but nevertheless ruled in his favour due to an unexpected argument.

“I think the judge wrote something very astute, which is that he didn’t understand why the Department of Justice prosecuted me for assaulting a police officer,” Ng said.

Leung Chun-ying. File photo: GovHK.

He added that he believed the prosecution to be political in nature: “The judgment today shows that the prosecution made a big mistake, and I believe that the Department of Justice charged me for political reasons, and also avoided Leung for political reasons.”

Leung, who was in Beijing on Wednesday to attend the central government’s “Two Sessions” meeting did not respond to questions about the case.

Holmes Chan

Holmes Chan is a reporter at Hong Kong Free Press. He covers local news with a focus on law, politics, and social movements. He studied law and literature at the University of Hong Kong.