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Joshua Wong

Joshua Wong and fellow Occupy Hong Kong student leaders made to wait as top court reserves judgment on jail terms appeal

Lawyers for Joshua Wong Chi-fung, Nathan Law Kwun-chung and Alex Chow Yong-kang claimed their sentences were too harsh

PUBLISHED : Tuesday, 16 January, 2018, 8:03am
UPDATED : Tuesday, 16 January, 2018, 10:52pm

Three Hong Kong student pro-democracy leaders – including Joshua Wong Chi-fung – were on Tuesday awaiting their fates after their lawyers made a last-ditch effort against jail terms imposed on them last year over their actions in the run-up to the 2014 Occupy protests.

The lawyers earlier that day told the court that lower appeal judges had erred in reinterpreting the facts concluded by the trial magistrate, who was lenient but did not impose a sentence out of range.

The Court of Final Appeal reserved judgment after hearing the ultimate appeal lodged by Wong, Nathan Law Kwun-chung and Alex Chow Yong-kang against their sentences, which were handed down to replace earlier non-custodial sentences after a government appeal.

Their bail was extended to the date of judgment.

The appeal, which also touched upon whether motives such as civil disobedience should be taken into account in sentencing, is expected to set a legal precedent in a city increasingly split by divided political views.

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If the five top justices – Chief Justice Geoffrey Ma Toa-li, and justices Roberto Ribeiro, Joseph Fok, Tang Kwok-ching and Leonard Hoffmann – rule against them, the trio would have to return to prison immediately to serve the rest of their sentences.

Writing on his Facebook page ahead of Tuesday’s decision, Chow said: “Whether justice will be done will be revealed [on Tuesday] … with the whole city and world watching.”

The three were convicted in 2016 over their role in the storming of a forecourt of the government complex on September 26, 2014, two days before the civil disobedience movement began. While Wong, 21, and Chow, 27, were found guilty of taking part in an illegal assembly, Law, 24, was convicted of inciting others.

All were originally given either a community service order or suspended sentence by a lower court. But prosecutors, deeming the sentence too light, took them back to court in a controversial move to ask the Court of Appeal to jail them.

Wong, Law and Chow were subsequently jailed for six, eight and seven months respectively, with the court issuing new sentencing guidelines for unlawful assembly.

Five months on, their lawyers argued on Tuesday that the Court of Appeal had overstepped boundaries of what it is entitled to do and, in Wong’s case, neglected that he was a minor at the time of the crime when considering his punishment.

His counsel Philip Dykes SC said the Court of Appeal may not alter the trial magistrate’s finding of facts when prosecutors had had the chance to correct them earlier.

Law’s counsel Robert Pang Yiu-hung SC, on the other hand, said the new sentencing practice may have “a chilling effect” on political participation among young Hongkongers, citing the University of Hong Kong’s recent student union elections, which did not receive any nominations, as possible evidence of such a consequence.

“Reports in the press suggest students simply don’t want to get involved,” he added.

But Lord Justice Hoffman noted: “The Court of Appeal is entitled to say, ‘You’ve got to be more careful’, and to make sure of that point by saying, ‘In the future you’ll get a higher sentence’.”

Ma, the chief justice, added: “We’re talking about violent unrest here, not the right to demonstrate.”

Still Ma also observed there was “quite a big jump” from a community service order to a six-month jail term.

Director of Public Prosecutions David Leung Cheuk-yin SC replied that it was not unprecedented for unlawful assembly convictions to result in imprisonment.

But being fully appreciative of the jump, Leung later added: “Your Lordship may substitute a sentence which would enable the applicants immediate release.”

Given the trio had already been remanded 69 to 83 days in prison and assuming that all of them are entitled to remission, Leung noted that they have all served close to or more than 50 per cent of their respective jail terms.

On the issue of civil disobedience, Edwin Choy argued for Chow that it can be a powerful mitigating factor when the acts involved were not very violent and were motivated by just causes that promote a pluralistic and tolerant society.

“Civil disobedience is always relevant unless you overstepped the mark,” the chief justice replied. “The query in each case is what ‘overstepping the mark’ means.”

Outside court, a hopeful Law said: “We expect a positive result. Hopefully the court will adopt our lawyers’ arguments.”

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But Wong added: “It’s hard for me to be overly optimistic since I have to face another case tomorrow in the High Court.”

Wong is expected to be sentenced on Wednesday over a separate case, in which he admitted to contempt of court for obstructing a court-ordered clearance of a major Occupy protest site.