The Occupy leaders have been jailed, but questions about democracy for Hong Kong won’t fade away

Beyond the debate on whether the sentences for eight leaders of the pro-democracy protests of 2014 were just, Hong Kong will still have to grapple with questions about the limits of free expression, the role of civil disobedience, and the prospects for democracy here

Cliff Buddle

Published: 6:00am, 26 Apr 2019

Why you can trust SCMP

The Occupy protests of 2014 were intended to force change in Hong Kong in the form of democratic elections. Five years on, the city is a different place. But the changes are not those the leaders of the movement had hoped for.

Eight of them were sentenced this week for their part in mass demonstrations which blocked streets for 79 days. Two founders of the civil disobedience movement, academics Benny Tai Yiu-ting, 54, and Chan Kin-man, 60, were jailed for 16 months. Politicians Shiu Ka-chun, 49, and Raphael Wong Ho-ming, 30, were each imprisoned for eight months. The District Court judge imposed non-custodial sentences on the other four.

The sentences in this – the last in a long line of Occupy cases – raise fresh questions about the limits of free expression in Hong Kong, the role of civil disobedience and what has been perceived by many as a government crackdown on dissent.

Britain, the United States and the European Union were all quick to issue statements expressing concern about the potential impact of the sentences on the exercise of freedoms in the city.

Predictably, opponents of the Occupy movement viewed the sentences as too lenient and supporters thought them too harsh. Given those reactions, the judge, Johnny Chan Jong-herng, might feel he got the balance right. He imposed a range of sentences and showed some compassion, notably in the case of Reverend Chu Yiu-ming, 75, whose 16-month jail term was suspended due to his age, poor health and many years of service to society.

But the focus will be on the immediate prison terms for people who were advocating peaceful, if unlawful, protest. They had said they were prepared to accept the legal consequences of their actions – and have now had to do so. But the sending of academics and activists to jail in such circumstances makes for an unedifying spectacle.

The charges related to the causing of a public nuisance. This offence, dating back to the 18th century in England, is rarely invoked and concerns unlawful acts which obstruct the general public’s rights. The judge took the view that the Occupy protests, which saw thousands take to the streets, were a very serious example of this because of the extent to which streets were occupied and the length of time the protests lasted.

Who are the Occupy leaders and what have they been convicted of?

The judge said the protest leaders, who had hoped the demonstration would bring universal suffrage, had “failed to notice the ordinary folks who needed to use the carriageways in question to travel to work to make a living”. The damage and inconvenience caused had been excessive, he added.

His use of a recent English public nuisance case is interesting. In that case, environmental protesters climbed onto trucks and blocked roads. Their protest lasted three days and caused “substantial disruption”. They were jailed at their trial. But the English Court of Appeal ruled that immediate prison terms were inappropriate, warning that caution had to be exercised in using such penalties in peaceful protest cases.

The court in that case said prison sentences should only be imposed if the crime is so serious more lenient alternatives cannot be justified. Judge Chan took the view that this was the case with the Occupy leaders and imposed jail terms. He also said that, unlike the environmental protesters in England, they had not shown regret for their actions.

Courts considering civil disobedience often refer to a famous quote of Lord Hoffmann in an English ruling in 2007. The judge, who also sometimes sits on the Court of Final Appeal in Hong Kong, noted in that case the “long and honourable history” of civil disobedience in Britain and the need for such behaviour to be accommodated in a civilised community. Protesters, he added, should not cause excessive damage or inconvenience while the authorities should show restraint.

Judge Chan took the view that the Occupy leaders had failed to keep their side of this bargain by persisting with the demonstrations and failing to ensure the inconvenience caused was kept within reasonable bounds.

Signs of hope for Hong Kong democracy amid the rancour

Whether he is right about that will, no doubt, be considered by higher courts on appeal. The top court, presuming the case goes that far, will have an opportunity to deliver a definitive decision on civil disobedience. The legal questions, therefore, remain.

But the sentences also offer an opportunity for Hong Kong to reflect on the events of 2014 and all that has happened since.

It is not easy to recall the mindset which existed five years ago. At that time, there were hopes that free elections would be introduced to select the city’s leader in 2017. There was much debate about the precise form the arrangement should take and different proposals were put forward. But in August, the central government laid down strict limitations on the election arrangement which would very likely have prevented the pro-democracy camp from fielding candidates. The Occupy protests, launched in September, were the response.

Those protests were born of hope, but also frustration. Hong Kong has been waiting years for universal suffrage, promised by the city’s de facto constitution, the Basic Law, and possible from 2007 onwards. Hopes that genuinely free elections for the city’s leader would be possible in 2017 were dashed by the limitations imposed. The proposals were later blocked by democrat lawmakers.

The Occupy leaders, as the judge said, might have been naive to think their action would force the authorities to remove the restrictions. But for many who took part in the protests, the real benefit of them was simply the platform they provided for making their disappointment known.

Lord Hoffmann, in his famous ruling, noted that people who break the law to affirm their belief in the injustice of a law are sometimes vindicated by history

Since then, there have been more than 1,000 arrests related to the protests. Some participants have been jailed, others released. But the courts have signalled a tougher line in future, especially if protests turn violent. Meanwhile, the government has cracked down on Hong Kong’s nascent independence movement. The law has been used to disqualify radical legislators, stop certain election candidates from standing, and to ban a pro-independence party.

There are fears that the jailing of Occupy leaders will have a chilling effect. We will not have to wait long to see whether the prison terms will deter or encourage demonstrations. A protest against the government’s proposed extradition laws, which could see Hong Kong residents sent for trial on the mainland, is to be held on Sunday. And on June 4, there will be the vigil marking the 30th anniversary of the Tiananmen crackdown.

There is a need for Hong Kong to move on from the divisive events of 2014. They cannot be blamed on Occupy protesters alone. The central and Hong Kong governments, the business sector, as well as the fragmented pro-democracy camp, could all have done more to bring about a form of universal suffrage acceptable to a sufficient number of lawmakers and the broader community.

The question of universal suffrage will not go away. Momentum for change will start to build again. Lord Hoffmann, in his famous ruling, noted that people who break the law to affirm their belief in the injustice of a law are sometimes vindicated by history. It is still possible that this will be the case for the leaders of the Occupy movement.

Cliff Buddle is the Post’s editor of special projects

Post