No breach of the rule of law in jailing of Hong Kong activists
C. M. Chan says the accusations and insinuations of Beijing’s heavy hand by both US politicians and, more recently, prominent UK lawyers are off the mark, as the facts of the case and a careful reading of the judgment show
In a recent open letter, a number of prominent international lawyers, including a former lord chancellor and several Queen’s Counsel from the UK, criticised the custodial sentences imposed on the three Occupy Central student leaders. They regarded the imprisonment as “a serious threat to the rule of law and a breach of the principle of ‘double jeopardy’ in Hong Kong – in violation of the International Covenant on Civil and Political Rights”.
The principle of “double jeopardy” is based on the maxim that no person ought to be punished twice for the same offence following a valid acquittal or conviction.
The defendants were originally convicted by a magistrate. The prosecution’s first request for a review of sentence took place before the same magistrate who convicted the defendants. The magistrate upheld her decision and rejected the request to reconsider her earlier ruling for non-custodial sentences.
Under the current rules, a review of sentence 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”. Subsequently, the Department of Justice requested that the Court of Appeal carry out a second review of the sentence.
The first review of the sentences was lodged before the defendants served their original community service orders, and their custodial sentences were delivered after their original community service sentences had been served. It took almost a year for the Court of Appeal to hear the review application because the defendants’ appeals were abandoned only in April this year. By the time the imprisonment sentences were handed down, the defendants had already completed their community services.
In its judgment, the Court of Appeal explained that, in delivering a sentence of imprisonment, it had already taken into account the number of hours of community service served by the defendants and, as such, discounts had in fact been made to the jail sentences (one month was deducted for two of the defendants). Therefore, it is difficult to understand the argument that the defendants were “punished twice”.
As for the threat to the rule of law, the judgment stated that the rationale behind the conviction was the defendants’ unlawful acts and not because of their political beliefs. The defendants were sentenced not because they exercised their lawful rights of demonstration, assembly or freedom of speech, but because they had acted in contravention of the law.
The Court of Appeal handed down its judgment on August 17, and critics were quick to infer that it showed that the appeals judges were influenced by Beijing. US Senator Marco Rubio, who chairs the US Congressional-Executive Commission on China, described the imprisonment as “shameful”, saying “Beijing’s heavy hand is on display for all to see as they attempt to crush the next generation of Hong Kong’s pro-democracy movement and undermine the ‘one country, two systems’ arrangement”. US Democrat Nancy Pelosi, the minority leader of the House of Representatives, said the ruling should “shock the conscience of the world”. Some Western media, including The New York Times, even called the three student leaders “political prisoners” or “prisoners of conscience”.
There is no evidence to support these allegations. The judgment, if studied carefully, appears well-reasoned and sound.
If the case does go to the Court of Final Appeal, which has foreign judges on the bench, the defendants will once again be legally represented and be able to advance their arguments one more time, to persuade their lordships that the Court of Appeal has erred in law. This is the usual course of proceedings under our judicial system and there is no deviation from normal practice in this case.
It should be noted that the judgment was originally delivered in Chinese, and the English version was released only two weeks later. Most of the comments from overseas were made before the English-language judgment became available. One wonders what kind of translated script these American senators and journalists relied on to attack Hong Kong’s judicial system. Or were they only making knee-jerk reactions based on reading some news reports and without any full analysis of the judgment?
Anyone who is genuinely interested in preserving the rule of law in Hong Kong should study the judgment carefully and objectively, before he or she comes to a hasty conclusion that the judgment was politically motivated and that the case was not handled in accordance with the applicable laws of Hong Kong.
Public confidence in our judicial system is fragile. The general public should be encouraged to discuss court cases as long as the discussions do not prejudice any ongoing proceedings. However, groundless attacks on the integrity of the judges of the Hong Kong SAR will cause damage to our cherished independent judiciary.
C. M. Chan is a practising solicitor in Hong Kong and an honorary research fellow of the Hong Kong Policy Research Institute