Occupy Central

Participants in Occupy Central 'should not underestimate legal consequences'

Solicitor specialising in rights cases warns would-be sit-in participants that judges have been coming down hard on protesters

PUBLISHED : Friday, 01 August, 2014, 1:55pm
UPDATED : Saturday, 02 August, 2014, 3:17am

People planning to join Occupy Central “should not underestimate” the legal consequences, says a human rights lawyer who expressed concern about a new trend of magistrates imposing heavier sentences on protesters.

Jonathan Man Ho-ching, a solicitor who has represented dozens of protesters in recent years, said offences that in the past would have received only a fine could now land defendants behind bars for weeks.

“Such a tendency may be a result of what the magistrates think is a need to respond to an increasing number of cases concerning unauthorised or unlawful assemblies coming before the judiciary,” Man said.

“My advice is that protesters should not underestimate the legal consequences.”

But Man added that there have been many instances where the appeal courts have lowered sentences on various grounds.

Organisers of the pro-democracy Occupy movement hope to rally some 10,000 people to camp out on the streets in Central if the government’s plan for the 2017 chief executive election does not guarantee a genuine choice between candidates for voters.

Watch: Hongkongers voice their opinion on the Occupy referendum, democracy and blockading Central

Occupy participants face being charged with unauthorised assembly, Man said.

Participating in an unauthorised assembly could bring a jail term of up to five years, under the Public Order Ordinance.

Even if the Occupy protest received permission from the police to take place, under the same ordinance the participants could still be charged with “unlawful assembly” if three of more people conduct themselves “in a disorderly, intimidating, insulting or provocative manner” or provoke other people to “commit a breach of the peace” – or police judge that a breach of the peace is likely to occur.

The maximum penalty is also five years in jail.

Key officials have repeatedly warned Hongkongers not to join Occupy Central, with Chief Executive Leung Chun-ying and a number of his political appointees signing the controversial anti-Occupy petition.

Some spoke of youngsters who join Occupy “losing their future”. Man described such warnings as “alarmist”.

“Many people in society do have criminal records: not only lawyers but also Tsang Tak-sing, the secretary [for home affairs],” said Man.

Watch: Hong Kong police arrest hundreds of demonstrators at Chater Road sit-in last month

Moreover, the Rehabilitation of Offenders Ordinance sets out that any convicted person whose sentence did not exceed three months in jail or whose fine was less than HK$10,000 is entitled to not disclose their criminal record when filling in declarations for job-seeking purposes.

Meanwhile, under the Police Force Ordinance, anyone who assaults or resists any police officer acting in the execution of his duty, is liable to a fine of $5,000 and six months in prison.

But Occupy organiser Benny Tai Yiu-ting, a constitutional law expert at the University of Hong Kong, said no participants should be arrested for these offences under the Police Force Ordinance if the protest proceeds according to organisers’ plan.

“We will only protest in the form of a sit-in. We won’t attack police officers,” he said.

Tai added that he would let all participants know of the possible legal consequences before the protest begins.