Avery Ng Wins Appeal Over CY Sandwich 'assault'

League of Social Democrats chairman Avery Ng has won an appeal against a common assault conviction over a sandwich-throwing incident involving former Chief Executive CY Leung.

Leung ducked and the tuna sandwich missed him, hitting a police officer instead.

Ng was given a three-month jail term in October 2017 over the incident which happened at a polling station during the 2016 Legco elections, as Ng joined a protest calling for a universal pension scheme.

Quashing the conviction on Wednesday, Justice Joseph Yau said Ng should only have been convicted of assaulting the policeman if the court was satisfied that his intention to assault Leung, or make him feel worried, had instead been transferred to the officer.

However, Yau noted that news footage showed the officer looked relaxed when the incident happened and he just carried on walking when the sandwich hit the back of his hand. He didn't seem worried at all, the judge said.

It was also not clear whether the sandwich would have made contact with the officer if he hadn't deliberately extended his arm to block it, the judge noted.

Yau said therefore, the common assault conviction was unsafe.

He also said that he was "puzzled" by the decision by the Department of Justice (DOJ) to charge Ng with attacking the police officer, instead of Leung.

The judge said that was an "unreasonable" prosecution decision, and he questioned whether the authorities had done this to avoid calling Leung to testify.

He said such an approach would obviously be “debatable and disturbing”.

But the judge said he did not know the real reason behind the prosecution's decision and he would not make any speculation on this.

Speaking after the ruling, Ng said he was surprised that he had won his appeal.

"Common assault, in terms of an appeal, is quite difficult to succeed. But obviously the judge made a very good observation in questioning the reason why the DOJ chose to prosecute me for common assault against the police officer, rather than the chief executive," Ng said.

"This was just another example of the DOJ using its power to prosecute political opponents."