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The reasons leading to the Court of Appeal’s conclusion that imprisonment is appropriate are legal ones, not political. Illustration: Craig Stephens

Joshua Wong, Nathan Law and Alex Chow are in jail because Hong Kong law demands it

Rimsky Yuen explains the legal basis behind the judgment, as those seeing ulterior or political motives, and fearing for the independence of Hong Kong’s courts, may not have grasped the basic facts of the case

Joshua Wong
Rimsky Yuen

On August 17, the Court of Appeal delivered its judgment on the ­application to ­review the sentences involving Joshua Wong Chi-fung, Alex Chow Yong-kang and Nathan Law Kwun-chung. The court sentenced the defendants to immediate custodial sentences of six to eight months.

The judgment has attracted ­extensive attention and discussions. Since the defendants have indicated an ­intention to appeal, it is not ­appropriate to go into matters which may affect the intended appeal. However, since some of the comments display a lack of understanding of the basic facts of the case or our legal system, it is important that there should be an explanation of the different stages of the legal and judicial process.

The first stage is prosecution. The defendants were prosecuted for offences involving unlawful ­assembly, which is defined in ­section 18 (1) of the Public Order ­Ordinance as follows: “When three or more persons, assembled ­together, conduct themselves in a disorderly, ­intimidating, insulting or provocative manner intended or likely to cause any person reasonably to fear that the persons so ­assembled will commit a breach of the peace, or will by such conduct provoke other persons to commit a breach of the peace, they are an ­unlawful assembly”.

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Unlawful assembly is not concerned with the ideas (whether political or otherwise) that the people who organised or participated in the assembly sought to advocate. Rather, it focuses on whether the conduct of the people during the assembly was unlawful. Accordingly, the defendants were not prosecuted for their political ideas.

There can be no doubt that the ­defendants were convicted after a fair and open trial

The second stage is the trial. There can be no doubt that the ­defendants were convicted after a fair and open trial. The defendants were legally represented, and they had every opportunity to make such submissions as they saw fit. At one stage, they lodged appeals against their convictions. However, they subsequently abandoned their ­appeals. Thus, they no longer take issue with their convictions.

The third stage is the review of sentence. The first review took place before the magistrate who convicted the defendants, pursuant to ­Section 104 of the Magistrates Ordinance. The second took place ­before the Court of Appeal, pursuant to section 81A of the Criminal Procedure Ordinance. Such a ­review can only be lodged if the sentence imposed by the trial judge “is not authorised by law, is wrong in principle or is manifestly excessive or manifestly inadequate”.

All these grounds for review only concern legal issues. Political considerations do not come into play, whether at the stage when the prosecution sought the review or when the Court of Appeal dealt with the application for review.

The hearing of the review was also open and transparent. All the submissions made by the prosecution were legal (as opposed to political). The defendants, again, were legally represented, and had every opportunity to advance such submissions as they saw fit.

Protesters try to storm the “Civic Square” forecourt outside the government headquarters in Admiralty, on September 26, 2014. Photo: SCMP Pictures

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If one reads the judgment (in particular, the leading judgment by Justice ­Jeremy Poon Shiu-chor), they will see that the reasons leading to the conclusion that imprisonment is appropriate are legal reasons, not political ones.
Further, as is made crystal clear in paragraph 171 of the judgment, the defendants were convicted and sentenced not because they exercised their right of assembly, demonstration or freedom of speech; but because they had overstepped the line allowed by the law and that they had committed serious unlawful acts.

Hong Kong has all along upheld judicial independence. The Hong Kong judiciary is well-known for their independence and quality. It is regrettable that some of the comments (including some by overseas media) sought to attack our judiciary. As I have repeatedly said, the public has a right to discuss judicial decisions, but no discussion should seek to undermine the integrity or impartiality of the judiciary.

The law in Hong Kong protects people’s fundamental rights, ­including the right to assembly

As observed in an Australian decision: “The authority of the law rests on public confidence, and it is important for the stability of society that the confidence of the public should not be shaken by baseless attacks on the integrity or impartiality of courts or judges (Gallagher vs Durack, 1983)”.

Some have queried the timing of the review applications, and alleged that there was an ulterior motive.

The timing of the review applications before the magistrate and the Court of Appeal are regulated by the relevant statutes. In the present case, the prosecution lodged the ­review applications within the relevant time prescribed by the statutes. The only reason it took almost a year for the Court of Appeal to hear the ­application was that it could not deal with the review of sentence until after the defendants’ appeals against conviction were disposed of (see section 81C (1) of the Criminal Procedure Ordinance).

The defendants’ appeals against conviction were scheduled to be heard on May 22. It was only after they abandoned their appeal on April 19 that the prosecution could proceed to fix a date for the hearing of the review of sentence, which eventually took place on August 9. In other words, the timing of these steps is not within the control of the prosecution, and any suggestion of an ulterior ­motive on the part of the prosecution is simply groundless.
Occupy student leaders (from left) Nathan Law, Alex Chow and Joshua Wong appear at the police headquarters in Wan Chai on August 27, 2015. The three were charged by police over a protest at “Civic Square” at Tamar the previous September. Photo: Sam Tsang
The law in Hong Kong protects people’s fundamental rights, ­including the right to assembly, demonstration and freedom of speech. However, any exercise of such rights should be in a lawful manner (see paragraphs 110-112 of the judgment). From the start of the prosecution up to the review of sentence by the Court of Appeal, the defendants were dealt with strictly in ­accordance with the law.

The defendants were convicted and sentenced for their unlawful conduct, not for their political ideas.

With these explanations, I hope the public and the international community will continue to respect our independent judiciary and ­refrain from baseless attacks.

Rimsky Yuen, SC, is Hong Kong’s secretary for justice

This article appeared in the South China Morning Post print edition as: Facts of the case