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Following is a written reply by the Secretary for Security, Mr Ambrose S K Lee, to a question by the Hon Emily Lau in the Legislative Council today (October 27):
Question:
In August this year, Ms Amina Mariam Bokhary was placed on probation for 12 months in a case of assault on police officers, arousing the dissatisfaction of some police organisations and the public that the penalty imposed was too light. Some members of the public even staged processions to complain about miscarriages of justice. Both section 63 of the Police Force Ordinance (PFO) (Cap. 232) and section 36(b) of the Offences against the Person Ordinance (OAPO) (Cap. 212) deal with assaults on police officers, but the penalties are different. While on the aforesaid case the Government instituted prosecution by invoking PFO which imposes a lighter penalty, it chose to institute prosecution against protesters alleged to have assaulted police officers by invoking OAPO which imposes a heavier penalty, hence it was criticised as being selective in instituting prosecutions. In this connection, will the Executive Authorities inform this Council:
(a) of the respective factors of consideration for choosing which of the aforesaid two Ordinances to invoke to prosecute persons alleged to have assaulted police officers;
(b) of the respective numbers of prosecutions instituted by invoking PFO and OAPO in the past three years for assaults on police officers; and among them, whether OAPO was invoked in all the prosecutions against protesters; and
(c) whether consideration will be given to amending the legislation to stipulate standardised penalties for assaults on police officers?
Reply:
President,
(a) For cases involving assaults on police officers, in deciding whether prosecution should be instituted and if so, under which provision, the Police will take into account circumstances of the criminal conduct involved and the evidence collected and where necessary, obtain legal advice from the Department of Justice. The Police will seek legal advice beforehand if they intend to proceed with a charge pursuant to Section 36(b) of the Offences against the Person Ordinance (Cap. 212). Prosecutors of the Department of Justice will make the decision to prosecute in respect of each case independently in accordance with established principles as set out in the "Statement of Prosecution Policy and Practice" so as to appropriately and sufficiently reflect the criminal liability of the defendant.
(b) According to the relevant records, the number of persons prosecuted under Section 63 of the Police Force Ordinance (Cap. 232) in 2008, 2009 and first half of 2010 is 160, 131 and 65 respectively.
On the other hand, the number of persons prosecuted for offences under Section 36 of the Offences against the Person Ordinance in 2008, 2009, and first half of 2010 is 288, 246 and 110 respectively. The Police do not maintain a breakdown of prosecution figures under each of the three sub-sections of Section 36. The three sub-sections under Section 36 are: Section 36(a) "assaults any person with intent to commit an arrestable offence"; Section 36(b) "assaults, resists, or wilfully obstructs any police officer in the due execution of his duty or any person acting in aid of such officer"; and Section 36(c) "assaults any person with intent to resist or prevent the lawful apprehension or detainer of himself or of any other person for any offence".
As for cases involving demonstrators, in particular the statistics of prosecutions instituted against participants of public procession or public assembly, the number of relevant persons prosecuted under Section 63 of the Police Force Ordinance in 2008, 2009 and first half of 2010 is 0, 0 and 3 respectively; while the number of persons prosecuted under Section 36(b) of the Offences against the Person Ordinance is 1, 4, and 0 respectively.
(c) The Police have consulted the Department of Justice in relation to the prosecution of cases involving assault on police officers and have issued internal guidelines in August this year based on the recommendations of the legal advice. The guidelines require all frontline officers to seek legal advice beforehand if they intend to proceed with a charge pursuant to Section 36(b) of the Offences against the Person Ordinance. We believe that these guidelines will further ensure the consistency in enforcing the relevant provisions.
We will continue to keep in view the developments and will keep in contact with the Department of Justice and the Police in order to closely monitor the implementation of the new guidelines and any area that requires improvement.
Ends/Wednesday, October 27, 2010
Issued at HKT 15:54
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