Amina Bokhary controversy

The Amina Bokhary controversy occurred in Hong Kong in 2010 involving the assault conviction of a wealthy woman from a well-connected political family. Amina Mariam Bokhary, 32, received a non-custodial sentence and a one-year driving ban following an incident in the aftermath of a road traffic accident when she struck several police officers. As she had committed similar offences in 2001 and 2008, her resulting probation was seen by some commentators as too lenient.

The perceived leniency in her sentence provoked an uproar in Hong Kong for alleged preferential treatment. In particular, the presiding judge caused outrage when he said in his judgment that Bokhary had an "unblemished background and was born into a good family with caring parents [and] an outstanding academic record". The comment highlighted the public perception of widening inequality and increasing disparities in the balance of political power between different social classes in Hong Kong. The judge came under pressure to reconsider his sentencing, but he declined to amend it upon review. Pundits also blamed the police for charging her with an offence carrying a lesser penalty; the Department of Justice was forced to appeal her sentence.

Opinion polls carried out indicated that the public's confidence in the judiciary and the impartiality of the courts had been shaken in light of the incident. In the end, after breaching her conditions of probation, Bokhary was jailed for six weeks. On appeal, her driving ban was further extended by two years.

Background to the incident

Bokhary is descended from influential Hong Kong families. Her grandfather, Daoud Bokhary, served in the British Indian Army and founded Bokhary Securities. Her father, Syed Bagh Ali Shah, was a council member of the former Stock Exchange of Hong Kong.[1] Her uncle, Kemal, is a judge sitting at the Hong Kong Court of Final Appeal, and Kemal's wife is a High Court judge;[2] a maternal uncle, Ronald Arculli, was the chairman of Hong Kong Exchanges and Clearing and previously member of the Executive Council of Hong Kong.[3]

Bokhary attended university in the United Kingdom and graduated with a first-class honors degree in economics. She has had a string of jobs in the fashion industry, including Sotheby’s, LVMH, and Harvey Nichols in Hong Kong.[4] According to her counsel, Bokhary failed to find peace or satisfaction in her personal and professional life after returning to Hong Kong from Britain, and in 2007 was diagnosed with bipolar disorder, for which she was being treated with strong psychotropic drugs and was reportedly undergoing intensive counselling. Her increasing alcohol consumption, combined with her medication, was said to have contributed to her violent outburst in 2008.[5]

Prior incidents

Bokhary's first brush with the police was in the early hours of 24 June 2001, when the manager of a bar in Central district of Hong Kong reported to police that she was causing a disturbance. When police officers arrived and attempted to arrest Bokhary, she hit one officer on the cheek; it took four officers at the scene to put her in handcuffs. Police also found a plastic bag with small amounts of cocaine on her person.[6] She was found guilty of the assault and fined HK$9,000 (US$1,153). She was held not guilty of cocaine possession because of doubts over the evidence.[7]

Bokhary was involved in a second altercation at around 3 am on 13 July 2008, again in Central.[8] Short of cash with which to pay the HK$17.80 taxi fare, she proffered her credit card.[9][8] When the taxi driver refused, Bokhary angrily flung her credit card in the driver's face; she kicked him when he prevented her from leaving the scene. The police were called. As she was being questioned by the two officers, Bokhary struck one of them. She was arrested[10] and charged with common assault and assaulting a police officer.[11] She was on medication and had taken wine prior to the incident.[9] Pleading guilty to both charges in November 2008,[10] she was sentenced to 240 hours of community service and ordered to pay the driver HK$1,000 in compensation.[9]

Incident and trial

Eastern Magistrates' Court building, in which the controversial first trial took place

Bokhary's vehicle was involved in a head-on collision with a bus on Stubbs Road shortly after midnight on 27 January 2010. She refused paramedics' attempts to put her on a stretcher,[12] returned to her vehicle, and continued to refuse to cooperate. She then attempted to walk away from the scene, but was prevented from doing so by a male police officer, whom she then slapped. She was handcuffed[13] and charged with careless driving, refusing a breathalyser test, and two counts of assault on a police officer.[12][14] She was released on HK$5,000 bail.[12]

Scheduled to appear in Eastern Magistrates' Court on 7 April, Acting Principal Magistrate Bina Chainrai recused herself due to her familiarity with Bokhary;[15][16] the defence was granted a further delay, to permit preparation of a medical assessment.[17] She pled guilty on 7 July, advancing mental illness in mitigation. On 2 August, she was sentenced to 12 months' probation and a fine of HK$8,000; her driving licence was suspended for 12 months.[18] As a condition of her probation, she would also enter a treatment programme at the Betty Ford Center in the United States. Passing sentence, magistrate Anthony Yuen Wai-ming stated that her offences would normally result in prison time, but he decided to be lenient because of her mental disorder. Yuen's comment in his judgment that Bokhary has an "unblemished background and was born into a good family with caring parents [and] an outstanding academic record" caused an uproar locally.[19] Her resulting probation was criticised in certain quarters, notably by the police, for its leniency.[20] Between 6 and 7 August, Magistrate Yuen reviewed the case, but did not change his ruling.[21]

Reactions

Various sectors of society expressed concern over the light sentence; the Police Inspectors' Association asked for clearer guidelines on the penalties to be expected in such cases.[22][23] The Junior Police Officers' Association also complained that the probation decision could not be seen as a deterrent, but accepted that the court decision had to be respected as the magistrate "would have considered all factors."[19] The Standard editorial derided Yuen's reasoning as "unpersuasive".[24] Kevin Zervos, deputy director of public prosecutions, requested that Yuen rethink his sentence.[23] The police also received criticism for charging Bokhary under the Police Force Ordinance – with a maximum penalty of six months imprisonment – instead of the Offences Against the Person Ordinance, which carries a maximum two-year sentence. Police Director of Crime and Security Xavier Tang responded that the lesser charge had been chosen because officers believed they had a better chance of conviction – she was said to be ready to plead guilty to assaulting police.[25]

Public

An editorial in the South China Morning Post (SCMP) criticised Yuen's for citing her background, family, education and academic achievement as being mitigating factors, which to some implied such would "buy leniency from the courts". It summarised that "The failure to show any logical connection between family background and the sentence leaves the public with the perception that those with a notable surname are more equal than others."[26]

A slap is an insult to the police officer and is therefore serious enough to warrant an immediate custodial sentence. The message can't be clearer, but this court cannot ignore the reason why she behaved the way she did.'

'Any reasonable person wouldn't [slap an officer] in front of so many other officers. [Her] behaviour was consistent with the mental illness she was, and is still, suffering.

'The 2001 incident was the underlying reason for the development of her illness ... Up to 2008, the defendant still lacked insight into her illness. It was unfortunate she was ordered to perform community service rather than [being given a] probation order.'

'The public is of the view that the court favours rich people and people with a prominent background ... [but] the focus of this case is not whether the defendant is rich or poor, [but] ... good or bad [by] nature, [and] whether or not he or she would repeat the offence.'

'[Sending the defendant to] prison for a few months would air the grievances of the public, but would destroy the rest of the life of the defendant.'

Magistrate Anthony Yuen, South China Morning Post, 7 August 2010[26]

With widespread criticism of his decision, the SCMP published on 7 August an explanation by Yuen, in which he said that Bokhary's behaviour was "consistent with the mental illness she was, and is still, suffering". He added that sending the defendant to "prison for a few months would air the grievances of the public, but would destroy the rest of the life of the defendant."[26]

Approximately 300 people protested outside the Legislative Council Building in Central on 8 August, while another 50, among them retired policemen, joined a Liberal Party-led march from Wan Chai to the Department of Justice building.[21] In a telephone survey of 1,100 people conducted from 10–13 August by the Hong Kong Research Association, 91% responded that they felt the sentence was too light.[27] Another survey of 1,007 people in the same period by the University of Hong Kong found that confidence in the judiciary had fallen; respondents' ratings on "fairness of the judicial system" fell to the lowest level since October 2004, while "rule of law" indicator and confidence in the "impartiality of the courts" also declined in the month.[28] A Facebook page complaining about the sentence had attracted 42,500 participants by 4 August.[29] Another Facebook group allegedly inciting Hong Kong residents to slap police officers was shut down by the site's administrators.[28][30] Bokhary's lawyer Peter Duncan disputes that the widespread perception for Bokhary receiving a light sentence was due to her family's wealth and connections.[23]

Under public pressure, the Department of Justice (DoJ) stated on 4 August that they were considering an appeal against Bokhary's sentence.[22] In particular, Secretary for Justice Wong Yan-lung described Yuen's sentence as "inadequate" and stated that he would initiate a review.[24] In a press release on 11 August, the DoJ stated that they had filed the application for leave to review with the Court of Appeal two days earlier.[31]

Legal profession

In response to the increased negative attention on the judiciary, the Hong Kong Bar Association and the Law Society of Hong Kong on 11 August issued a joint statement to "allay misgivings of the public" and to explain the court's approach,[32][33] whilst deploring "any attempt to bring public pressure on a Judge or Magistrate to change his or her mind upon a review of sentence". Senior Counsel Martin Lee also spoke out against the protest, which he described as mob rule and detrimental to the rule of law. Lee said he would have handed down the same sentence as Yuen in light of the facts of the case.[34] Public focus had been expected to remain on Yuen as he is also the judge handling the case of Christina Chan, the protester charged with assaulting a police officer during the 2010 Hong Kong new year march,[32][35] although the chairman of the Hong Kong Police Officers' Association stated that the two cases were not comparable.[36] Chan was acquitted of the assault on 3 September.[37]

Pundits

Former legislator Albert Cheng noted that had Bokhary been charged under the Police Ordinance, and not the Offences Against the Person Ordinance, she would have faced a custodial sentence of up to two years; furthermore, the police failed to charge Bokhary for allegedly assaulting a policewoman at the police station after her arrest; the police also prosecuted her for careless driving instead of the more serious offence of dangerous driving. Cheng said: "The public certainly has the right to voice its anger against any injustice. But, in this case, its targets shouldn't be the government or the courts, but Secretary for Justice Wong Yan-lung, who is responsible for prosecutions and all government legal matters."[38] Legislator and former Secretary for Security, Regina Ip, said: "At the end of the day, the sense of outrage is not about justice and penalties, but about the widening inequality between rich and poor, between the corporate giant and the artless individual, and the yawning asymmetry of money, knowledge and expert power between the haves and have-nots of our society."[39] Political commentator Michael Chugani agreed that public anger existed due to the belief that Hong Kong society had become too unfair, and that the verdict was confirmation to some of this view. He said that the public outrage responsible for forcing the Department of Justice to appeal against Bokhary's sentence was unlikely to result in a happy ending because both outcomes were potentially damaging: the jailing of Bokhary would imply the judicial system had succumbed to public pressure; if she was not jailed, the system would be tarnished by accusations of favouritism.[40]

Probation breach and jail sentence

Bokhary appeared before magistrates court on 23 December 2010 and was sentenced to six weeks in jail for breaking five out of seven conditions of her 2 August probation order – she failed to complete three months' alcohol rehabilitation in the United States; failed to report to her probation officer or to participate in programs arranged by same as required; did not reside as directed; refused to receive psychiatric and psychological treatment. Her lawyer said Bokhary had become increasingly paranoid as a result of the media attention and felt that “she had become a target of abuse.” The court rejected her bail application.[41][42][43] Prosecution appealed the sentence – a one-year driving ban and probation order – imposed on Bokhary for failing to provide a breath specimen. The appeal against the probation order was dropped when she was jailed, but at a hearing on 11 January, the Court of Appeal extended Bokhary's driving ban to three years.[44][45] She served four weeks of the sentence, and was released on 22 January 2011.[44]

References

  1. ↑ SEHK document (PDF), retrieved 23 June 2011
  2. ↑ "Good life fit for a hero", The Standard, 26 May 2005, archived from the original on 26 May 2005, retrieved 9 January 2008
  3. ↑ "叔大法官 舅夏佳理 (Paternal uncle big judge; maternal uncle Ronald Arculli)", Wen Wei Po, 28 January 2010, retrieved 29 January 2010
  4. ↑ "Amina Bokhary", New Data Agency, 26 March 2011
  5. ↑ Carney, John (8 August 2010), "Amina's friends and family in high places", South China Morning Post, retrieved 26 April 2011
  6. ↑ "法官包致金姪女涉藏毒 (Judge Kemal Bokhary's niece suspected of drug possession)", Sing Tao, 20 December 2001, retrieved 12 August 2010
  7. ↑ "法官包致金侄女 撞車後涉摑警被捕 (Judge Kemal Bokhary's niece arrested after car accident for allegedly slapping cop)", Wen Wei Po, 28 January 2010, retrieved 28 January 2010
  8. 1 2 "包致金侄女襲警輕判社服 (Kemal Bokhary's niece sentenced to community service for assault on police)", Hong Kong Commercial Daily, 3 December 2008, retrieved 12 August 2010
  9. 1 2 3 "Sobering times for judge's niece", The Standard, 3 December 2008, retrieved 28 January 2010
  10. 1 2 "終院法官包致金侄女 認襲擊的士司機女警 (Niece of Court of Final Appeal Judge Kemal Bokhary pleads guilty to attack on taxi driver and female cop)", Ming Pao, 19 November 2008, retrieved 12 August 2010
  11. ↑ "Judge's niece charged", The Standard, 30 September 2008, retrieved 28 January 2010
  12. 1 2 3 Lee, Colleen; Yu, Rebecca (28 January 2010), "Niece of judge held for slapping cop", The Standard, retrieved 28 January 2010
  13. ↑ "包致金侄女拒吹波狠摑交警 (Kemal Bokhary's niece refuses breathalyser test, attacks police)", Ming Pao, 28 January 2010, retrieved 9 August 2010
  14. ↑ "包致金侄女被控襲警 (Kemal Bokhary's niece charged with assault on police)", Sing Tao Daily, 26 March 2010, retrieved 26 March 2010
  15. ↑ Hong, Kaylene (8 April 2010), "Niece of top judge on double cop assault rap", The Standard, retrieved 20 May 2010
  16. ↑ "包致金侄女 涉摑警押後審 (Kemal Bokhary's niece cop-slapping case to be heard later)", Wen Wei Po, 8 April 2010, retrieved 20 May 2010
  17. ↑ "包致金侄女玩分身", Ming Pao, 21 May 2010, retrieved 21 May 2010
  18. ↑ "包致金侄女摑警 官允考慮感化 (Judge to consider probation in Kemal Bokhary's niece cop-slapping case)", Ming Pao, 7 July 2010, retrieved 8 July 2010
  19. 1 2 Ho, Serinah (3 August 2010), "Slap happy", The Standard, retrieved 3 August 2010
  20. ↑ "Slap on the wrist for slap on the face sparks review". AsiaOne News (5 Aug 2010)
  21. 1 2 Ho, Serinah (9 August 2010), "300 March against slapping sentence", The Standard, retrieved 9 August 2010
  22. 1 2 Ho, Serinah (4 August 2010), "Police uproar over light sentence for judge's niece", The Standard, retrieved 9 August 2010
  23. 1 2 3 Mao, Debra (6 August 2010), "Judge's Niece Avoids Jail in Hong Kong Police Assault as Probation Upheld", Bloomberg News, retrieved 9 August 2010
  24. 1 2 Mary Ma (5 August 2010), "Perception of a double standard", The Standard, retrieved 9 August 2010
  25. ↑ "Police deny favouritism in Bokhary case", RTHK, 8 August 2010, retrieved 11 August 2010
  26. 1 2 3 Magistrate Anthony Yuen (7 August 2010). "In his own words: how Magistrate Anthony Yuen sees the case and the sentence". South China Morning Post
  27. ↑ "包侄女襲警案　九成港市民感判刑過輕", Hong Kong Business Times, 16 August 2010, retrieved 16 August 2010
  28. 1 2 Chan, Samuel (18 August 2010), "Bokhary case blamed after public loses faith in courts", The Standard, retrieved 19 August 2010, The telephone survey of 1,007 respondents, conducted by the University of Hong Kong from August 10-13, shows the rating of the fairness of the judicial system down from 7.05 in February to 6.06 this month ... The "rule of law" indicator also dropped by 0.27 to 6.61 this month, and one of the sub-indicators, "impartiality of the courts," fell by the biggest margin of 1.24 to 6.16, both two-year lows.
  29. ↑ Mao, Debra (4 August 2010), "Hong Kong to Review Probation Sentence for Judge's Nieces' Assault Charge", Bloomberg News, retrieved 9 August 2010
  30. ↑ "警查網上毆打摑差人群組 (Police investigate online cop-slapping group)", Hong Kong Commercial Daily, 18 August 2010, retrieved 23 August 2010
  31. ↑ "DoJ's response to joint statement by Bar Association and Law Society", Info.gov.hk, 11 August 2010, retrieved 16 August 2010
  32. 1 2 Chong, Dennis (12 August 2010), "Furor over Bokhary 'unhelpful'", The Standard, retrieved 12 August 2010
  33. ↑ Press release: Joint statement of the Hong Kong Bar Association and the Law Society of Hong Kong (PDF), Hong Kong Bar Association, 11 August 2010, retrieved 12 August 2010
  34. ↑ "李柱銘：公審摑警案傷法治 (Martin Lee: 'Public trial' in cop-slapping case harms the rule of law)", Ming Pao, 9 August 2010, retrieved 11 August 2010
  35. ↑ "與Amina同控罪同法官 (Same charge, same judge as Amina)", Ming Pao, 11 August 2010, retrieved 6 September 2010
  36. ↑ "警察員佐級協會主席：不能與Amina事件比較 (Hong Kong Police Officers' Association chairman: not comparable with Amina case)", Hong Kong Daily News, 3 September 2010, retrieved 6 September 2010
  37. ↑ 柳頤衡 (6 September 2010), "廿四味：培根的比喻與朱熹的名句", Wen Wei Po, retrieved 6 September 2010
  38. ↑ Cheng, Albert (11 August 2010). "Sentence too lenient, or were charges too light?". South China Morning Post
  39. ↑ Ip, Regina (13 August 2010). "One law for the rich?". Savantas Policy Institute.
  40. ↑ Chugani, Michael (16 August 2010). "Court of opinion". South China Morning Post
  41. ↑ Lee, Diana (24 December 2010). "Bokhary jailed for six weeks". The Standard. Retrieved 24 December 2010.
  42. ↑ Carney, John (23 January 2011). "Judge's niece Bokhary released from prison". South China Morning Post.
  43. ↑ Wong, Kelvin & Mao, Debra (23 Dec 2010). "Judge's Niece Is Jailed for Six Weeks for Assaulting Police in Hong Kong", Bloomberg
  44. 1 2 Carney, John (23 January 2011). "Judge's niece Bokhary released from prison". South China Morning Post.
  45. ↑ Lee, Diana (12 January 2011). "Bokhary drive ban extended". The Standard (Hong Kong). Retrieved 8 August 2011
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