Hong Kong lawmaker files case against officer who shot protester in rare example of private prosecution
Democratic Party lawmaker, legal team investigated three incidents involving use of force with an eye towards pursuing a case against an individual officer. But Secretary for Justice has final say and could move to take over the case or refuse to endorse an indictment
The Hong Kong police officer who shot a protester with a live round in November has become the first member of the force to face legal charges related to the social unrest in the city, after a lawmaker filed a case against him on Thursday in a rare example of private prosecution.
Filed by Democratic Party lawmaker Ted Hui Chi-fung, the lawsuit accuses traffic officer Kwan Ka-wing of attempted murder and shooting with intent to cause grievous bodily harm to a person – both of which carry a maximum sentence of life imprisonment.
Kwan will not appear in court, however, until the court is satisfied there is sufficient evidence to begin criminal proceedings.
While allowed for under Section 14 of the Magistrates Ordinance, private prosecutions are very rare, and ultimate control remains in the hands of the Secretary for Justice, which could choose to take over the case at any point or stop it in its tracks by refusing to endorse the indictment.
Hui said his legal team, which had studied three cases involving police use of force with an eye toward pursuing private prosecution against individual officers, had deemed Kwan’s case to have the best prospect of a conviction. They have raised HK$3.38 million (US$434,000) through crowdfunding to support their investigations.
The court filing said that at about 7am at the crossroad of Shau Kei Wan Road and Tai On Street, Kwan opened fire at 21-year-old Chow Pak-kwan without warning from a distance of 30 centimetres. Moments earlier, the officer had been grappling with another protester before drawing his revolver.
Hui said he had informed Chow of the legal action.
Filing the application to Principal Magistrate Bina Chainrai of Eastern Court as an informant of the case, Hui said the prosecution would serve to deter officers from abusing their powers and bring those who violated the law to justice.
“This prosecution is not targeting the entire police force, but individual officers who have broken the law,” he said outside the court.
The Magistrates Ordinance empowers any individual not acting on behalf of the Secretary for Justice to initiate a criminal prosecution in the capacity of either a complainant or informant.
While the law also enables the justice secretary to intervene at any stage of the proceedings, Hui warned they should not interfere with the present application. He said the Department of Justice risked damaging its reputation and appearing biased toward police should they take over the case.
Hui said his planned prosecution would rely on an open source video and three witnesses. The witnesses include a passer-by who was at the scene of the shooting, and another pedestrian who took the video.
Hui said the victim himself was off the witness list, however, after considering the risk that he might be charged by the justice department for his account in court during the proceedings.
“We will avoid summoning him as witness if possible,” Hui said.
In the first stage of the proceedings, the court will determine in an open hearing whether the private prosecutor has sufficient evidence to continue their case, before summoning the defendant to court.
The city’s police force has been criticised for their handling of the civil unrest that broke out in June over the now-withdrawn extradition bill.
Protesters have complained that while officers have used excessive force in arresting protesters, none have faced charges for related accusations.
A justice department spokesman declined to address the specifics of the case, but said as a general principle, the department might consider displacing a private prosecutor if they disagree with their conclusions.
A spokesman for the police department declined to comment.
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