A Hong Kong policeman taken to court over a shooting during last year’s anti-government protests applied for a judicial review on Monday in an attempt to quash the private prosecution, the Post has learned, arguing there was an “ulterior motive” behind the “unconstitutional” move.
Democratic Party lawmaker Ted Hui Chi-fung’s legal bid against the policeman, who opened fire during a protest in Sai Wan Ho last November, was approved in June by the Eastern Court.
Hui’s case centres on two people: the protester who survived the shooting on November 11, and another standing nearby.
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The court’s decision paved the way for the first criminal prosecution of an officer over the anti-government unrest that erupted a year ago.
He was previously granted anonymity in another case in which he served as a prosecution witness.
He was scheduled to enter his plea on August 31.
The Post has been told the officer submitted the application to the High Court hoping to clear the three criminal charges he faced. His filing also included a request for an interim order to stay those proceedings until the judicial review was determined.
His legal representative argued the court had made the “wrong decision”, and the private prosecution violated Article 63 of the Basic Law, the city’s mini-constitution, which gives the Department of Justice control over criminal prosecutions without any interference.
The lawyer also argued that Hui had abused the judicial process and he had “bad faith” and an “ulterior motive” in instituting the prosecution.
“Hui premeditated the private prosecution against the applicant and other police officers who were executing lawful duties, with a view to arousing hatred, aversion, resentment and hostility on the part of the public against the Hong Kong Police Force and police officers and/or taking revenge against the HKPF,” the application said, with reference to Hui’s past arrests and prosecution, such as his phone-snatching case, where he was convicted and sentenced to 240 hours of community service.
It was further argued that the lower court had no power to grant the prosecution in the first place, when Hui had failed to establish a prima facie case and the serious charges involved were beyond a magistrate’s jurisdiction.
Hui earlier argued the officer should face five serious charges, including attempted murder, and discharging ammunition in a manner likely to injure or endanger the safety of others.
Magistrate Lam Tsz-kan dismissed two of the charges, but he allowed Hui to press ahead with two other firearm-related counts, as well as a further charge of shooting with intent, an offence punishable by life in prison.
The two firearm charges were, discharging ammunition with reckless disregard for others’ safety, and dealing with arms in a way likely to injure or endanger others’ safety. Both carry a maximum jail sentence of seven years.
Although criminal prosecutions are controlled by the secretary of justice in Hong Kong, aggrieved residents can bring private prosecutions against others under the common law, the legal system adopted in the colonial era.
Only a few cases are privately prosecuted every year, as opposed to the tens of thousands the secretary for justice brings.
In June, a spokesman from the Department of Justice said the minister had a duty to discontinue cases with no reasonable prospect of conviction, that were contrary to the public interest, or were brought for political reasons in a way that constituted injustice.
But he added it was inappropriate to comment on an ongoing individual case.
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