How a magistrate falsified evidence to send me to prison
And why the Chief Justice should take responsibility for the increasing judicial misconduct in the lower courts
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As many of you know, I spent almost two months in prison last summer for a crime I didn’t commit. I was released on bail with six weeks left on my sentence, and Justice Toh of the High Court heard my appeal last November 15. She’ll issue her ruling next Tuesday, February 8. If she upholds the verdict, I will return to prison and prepare an appeal to the Court of Final Appeal.
I’m not going to comment directly on the appeal or what we expect at next Tuesday’s hearing. Instead, I’m going to talk here about the magistrate court’s ruling that sent me to prison.
Last May, Magistrate Arthur Lam Hei-Wei heard a four-day trial, at which my lawyers presented voluminous video evidence and got the two accusers to admit under oath to repeated lies. Magistrate Lam then took seven weeks to come to a verdict and, to the shock of everyone involved, found me guilty and sentenced me to four-and-a-half months in prison. The written decision is so full of legal and factual falsehoods that it could not have been anything less than an effort to mischaracterize facts, protect a retired police officer and a correctional services officer who had criminally assaulted multiple people, and send an innocent man to prison.
Magistrate Lam repeatedly mischaracterized the contents of CCTV and cell phone videos
If you haven’t seen it before and have some time, the best way to understand how deeply offensive to rule of law and the integrity of the courts Magistrate Lam’s ruling was is to watch the video we put together a few months ago comparing the evidence to Magistrate Lam’s characterization of the facts. You’ll have to sign into YouTube to view it:
Here are some highlights:
At the time of the incident, an alleged police officer, Yu, said repeatedly that he was not a police officer in both English and Chinese, and refused repeatedly to show any warrant card to those present. Magistrate Lam said that Yu’s repeated denials were irrelevant since he eventually changed his answer and began to say he was a police officer—after I had intervened to stop his attacks on others.
Yu admitted that the incident started when he falsely accused a teenager of sexual assault, then grabbed the teen and began beating him. Magistrate Lam said that this was “not a false accusation” because Yu’s intent was to trick bystanders into stopping and beating up the teen, not to make a false accusation. In Magistrate Lam’s view, falsely accusing someone of a serious crime for the purpose of tricking others into committing violent assaults against the falsely accused person is reasonable.
The videos show another man, corrections officer Lo Chi Keung, holding the teen still from behind while Yu beats him with his fists. Yu then pulls out a baton, extends it, and begins beating the teen with it, before pinning the teen against the wall and attempting to choke him. Using force against the teen, whom Yu admitted had committed no arrestable offence, violated police regulations. Even if force had been permitted, using a baton to attack the head or neck is absolutely always prohibited. Magistrate Lam simply denied that these events can be seen in the videos.
After the teen escaped, Yu chased after him. He then can be seen coming back down the stairs to where I had been speaking with several other people. Yu already has his baton in his hand, in violation of police regulations. He immediately walks up to another Westerner, shoves him, screams at him, and raises the baton to the man’s head. This is, of course, an illegal assault. If Yu had been wearing a uniform, it would have been an illegal assault. If he had repeatedly shouted “I am a police officer,” it would have been an illegal assault. Police Officers are only allowed to use reasonable force, and reasonable force is spelled out in their regulations: Where people are simply talking, any force used by a police officer without cause for arrest is an assault. Magistrate Lam simply ignored these events in the videos and wrote instead that “Yu didn’t assault anyone.”
When I reached in to grab the baton and disarm this dangerous man, Yu can be seen in the videos extending the baton, raising it over his head, and charging at me to beat me with it. In perhaps the most blatant falsehood in his ruling, Magistrate Lam wrote that Yu “extended his baton as a defensive measure. He then stepped forward intending to make enquiries with the defendant.”
Yu can be seen in the video tripping over the railing, falling to the ground, grabbing my sweater and pulling me down on top of him. Magistrate Lam wrote that I had pulled Yu over the rail and down to the ground, then jumped on top of him.
In the video, Yu held me down on top of him while he beat me on the legs and side with the baton. To stop the attack, I hit him twice in the head, which allowed me to grab hold of the baton, at which point I stood up. Magistrate Lam denied that I was being hit with the baton and instead ruled that I maliciously jumped on top of Yu and started hitting him.
The videos are clear. It is not possible that Magistrate Lam believed his characterizations of the facts were accurate. He was not simply mistaken—he lied. And he sent me, an innocent person, to prison.
The Chief Justice, in refusing to suspend and investigate those responsible for judicial misconduct, is failing to do his job
Magistrate Lam is not the only court official who has brazenly falsified the content of evidence in recent cases. Just in the past month I’ve written about two other cases in which judges and magistrates have manipulated evidence to reach an improper ruling—cases decided by Magistrate Amy Chan Wai-Mun and Judge Amanda Woodcock. There have been others, and I wish I had time to write about them all.
Judicial independence and professionalism in the Hong Kong Judiciary are under assault from within. My case is not an isolated incident but part of an epidemic, and this rampant judicial misconduct should be causing alarm amongst top court officials.
Yet last week, Chief Justice Andrew Cheung declared that there was “no question” that judges were being “impartial” in their rulings, and that “judicial independence in Hong Kong exists as a fact.”
I hope this is a case of the Chief Justice being unaware of what’s happening in his lower courts, and not a deliberate effort to paper over misconduct.
Chief Justice Cheung perhaps thinks he can simply sit back and wait for the occasional wrongly-decided case to float up to the CFA on appeal after years of appeals and millions of HKD in legal fees, where it can be overturned. But that’s not his job. Under the Court of Final Appeal Ordinance s. 6, the Chief Justice is responsible for “the administration of the Judiciary.” His mandate is to actively ensure the proper administration of justice, including intervening to suspend judges pending investigation in instances where blatant judicial misconduct threatens public trust in the judiciary.
Justice Cheung’s predecessor, Geoffrey Ma, understood this to some extent. When in April 2020 District Court Judge Kwok Wai-Kin expressed sympathy for a man who had stabbed three pro-democracy protesters, praising the man’s “involuntary sacrifice,” Chief Justice Ma immediately removed Kwok from protest-related cases. It wasn’t enough, but it was at least a minimal effort to preserve the image of judicial fairness amongst the public. Since then, there have been no consequences whatsoever for certain judges and magistrates who have done far worse than Judge Kwok by inventing evidence and manipulating the law to imprison innocent people.
If Chief Justice Cheung actually believes what he said last week—that judicial independence must be preserved—then he should act to suspend magistrates and judges against whom credible allegations of misconduct have been made so that they can be subject to full investigation.
But let’s not get our hopes up. In July 2021, after Chief Justice Cheung took office, he reinstated Judge Kwok. And last week’s speech suggests the Chief Justice has little desire to put actions behind his defense of the judiciary’s reputation as an independent and fair institution. I hope I’m wrong.
Good luck with next week’s ruling Sam - I hope it works out better than you predict.
Wish you luck n stay safe 🙏