Occupy Central

Politics played no part in Hong Kong court’s decision to jail young activists

Grenville Cross says the appeals court was right to overrule the initial, more lenient sentences that gave undue weight to the activists’ political motivation, a violation of the principle that all are equal before the law

PUBLISHED : Tuesday, 29 August, 2017, 5:18pm
UPDATED : Tuesday, 26 September, 2017, 3:06pm

Earlier this month, the Court of Appeal sentenced three young men to imprisonment for between six and eight months, for their involvement in an unlawful assembly. This occurred at “Civic Square”, outside the government headquarters in Central, in September 2014.

The offence of unlawful assembly is punishable with up to five years’ imprisonment, and is treated seriously. It arises where three or more people have assembled together and behaved in a disorderly, intimidating or provocative way, intended or likely to cause any person to reasonably fear that the assembled people will commit a breach of the peace, or will provoke others to commit a breach.

The evidence at trial showed that the men stormed a restricted area, and incited others to do likewise. Force was used to prise open closed gates, which were being guarded by security guards and police officers. The barriers around the flagpoles were pushed over and other people were encouraged to invade the restricted area.

In the melee, 10 security guards sustained injuries. Although these were not, for the most part, serious, one security officer sustained a slight fracture to his first phalanx, and had to take 39 days of sick leave.

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Although this was a serious public order offence, the trial magistrate failed to reflect this in her sentences. She imposed community service orders on two of the men and a short suspended prison sentence on the third. While there is always scope for leniency in sentencing, the magistrate disregarded the need for condign punishment as a deterrent in cases where large-scale public disorder involves violence and injury. She treated the political motives of the men as a basis for not imposing tougher sentences, and thereby misdirected herself.

Political motivation cannot shield an offender from the consequences of his or her actions, or attract preferential treatment

For as long as it remains the case that everyone is equal before the law, there cannot be one type of sentence for political activists and another for other lawbreakers. Political motivation cannot shield an offender from the consequences of his or her actions, or attract preferential treatment. What the magistrate called “idealism” can never justify violence or hooliganism.

Given their undue leniency, Secretary for Justice Rimsky Yuen Kwok-keung had little choice but to invite the Court of Appeal to review the sentences, and to impose punishments which fitted the crime. He relied upon the evidence and the law. To have sat back and done nothing, perhaps out of fear of sparking protests locally or criticism internationally, would have been a dereliction of duty, and he is to be commended for standing firm.

Had Yuen not acted as he did, the wrong message would have gone out to potential lawbreakers. Other magistrates would have been asked in similar cases to treat the ruling as a precedent, which could have led the law in the wrong direction. Inaction by Yuen would have been seen as acceptance by him of an approach which, on the legal authorities, was flawed.

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The Court of Appeal has endorsed the propriety of Yuen’s application. Yet this has been over­looked by some commentators who, wary of criticising the court itself, have craftily chosen to direct their fire at Yuen instead.

Moreover, it should be noted that the court has been as lenient as the circumstances allowed. Recognition was given in the computation of sentence to the parts of the original sentences already served, as well as to the strain involved in an offender facing sentencing a second time, through no fault of his own.

Although the Court of Appeal has discharged its duty in a reasoned way, intemperate criticism from abroad has still resulted. Twenty-five international figures released an incendiary attack on the court’s judgment, calling it “outrageously unjust” to imprison “political prisoners”. None of them has any obvious association with Hong Kong, let alone any understanding of its legal system. No such excuse, however, can be made for former governor Chris Patten.

Our courts will do more to protect freedoms than the foreign press

In an extraordinary outburst, Patten, writing in the Financial Times, called the imprisonment of the three men “a serious error on the part of Hong Kong’s government”. He even reverted to type, suggesting this was another example of “Beijing tightening its grip on Hong Kong’s aspirations to remain a free society”.

Patten, of all people, should know that the sentencing review system, introduced into Hong Kong by the colonial government in the 1970s, is an established feature of our legal landscape. Since 1988, it has also been regularly deployed by the attorney general in Britain, where he now lives, to correct errors by trial courts.

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In his zest to score political points, Patten has ignored the inconvenient truth that the three offenders have been imprisoned not by the government, as claimed, but by the Court of Appeal. As he should know, Hong Kong’s judiciary is fiercely independent, is comprised of men and women of integrity, and is well regarded throughout Asia and beyond. As the Bar Association and the Law Society have explained, in their joint statement, court rulings are made “solely according to law”, and Patten should take heed.

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Under the Basic Law, moreover, the judiciary enjoys an entrenched constitutional status it lacked in Patten’s time. Article 85 provides that our courts “shall exercise judicial power independently, free from any interference”. Even if it upsets some commentators, the duty of the courts is always to apply the law, without fear or favour.

Once he has cooled down, Patten may wish to withdraw his slur, and to give the judiciary his unequivocal support, given its valiant work in upholding the rule of law in Hong Kong.

Grenville Cross SC is a criminal justice analyst