Hong Kong courts

Is the Hong Kong judiciary being lenient with young activists?

Michael Chugani says Hong Kong’s top judges, in recent rulings on protest cases, seem to be sympathising with young activists. Are they sending Beijing a message, and what will happen if the inevitable ban on Andy Chan’s separatist party is challenged in court?

PUBLISHED : Thursday, 20 September, 2018, 8:03am
UPDATED : Thursday, 20 September, 2018, 8:05am

Have our judges become politicised? Just asking will draw ire from those convinced our judiciary is above reproach. But ask I must because recent court rulings have puzzled me. One of those rulings set off a rant by Beijing loyalist Stanley Ng Chau-pei, who condemned Court of Final Appeal judges as sinners for overturning the jail sentences of 13 activists.

I have long defended how scrupulously Hong Kong’s judges uphold the motto, “Justice is blind”. When Hong Kong’s last governor, Chris Patten, accused the government of using politically motivated charges to persecute three young activists, I wrote here that the government alone cannot persecute. It needs the judiciary to play ball, too.

I refuse to believe judges would conspire to persecute activists the government wants jailed. If anything, recent rulings on several politically charged cases seem to suggest judges actually sympathise with activists. That’s why I wonder if they have become politicised.

About two weeks ago, the Court of Final Appeal overturned jail terms imposed by an appeal court on the 13 activists who tried to storm the Legislative Council in a 2014 protest against government development plans for the New Territories.

Occupy trio to challenge legality of charges against them

Chief Justice Geoffrey Ma Tao-li labelled the storming as extremely violent yet ruled that the 13 had suffered a substantial and grave injustice when the appeal court replaced a magistrate’s community service orders with jail terms.

Last week, a High Court judge rejected the appeal of retired police superintendent Frankly Chu, who had received a three-month jail sentence for using his baton once to strike a man in a Mong Kok clearance operation during the 2014 Occupy protests.

The judge declared that Chu didn’t deserve community service because he struck a compliant man with a potent weapon, didn’t show genuine remorse, and had set a very bad example to his subordinates.

Well, the 13 activists who stormed Legco didn’t show any remorse, either. One even disagreed with Ma’s description of the protest as extremely violent. And what example did they set to their peers by storming Legco, causing HK$400,000 in damage, and injuring a security guard, who needed 85 days of sick leave?

Last February, a court jailed seven policemen for two years for beating up an activist during the 2014 Occupy protests. The judge described the beating as a vicious assault on a defenceless protester. The protester they beat up, who had first splashed an unknown liquid onto policemen, received a five-week jail term.

Earlier this year, the Court of Final Appeal overturned an appeal court’s jail terms for Joshua Wong Chi-fung, Nathan Law Kwun-chung, and Alex Chow Yong-kang. The trio, who effectively triggered the Occupy uprising by storming the forecourt of government headquarters, had originally received non-custodial sentences but were slapped with jail terms by an appeal court.

Even though the top court freed the trio, Ma agreed with the lower appeal court’s message that violent protests should be condemned and that convictions should carry jail terms. But the top court ruled that even though the lower court was right to set tougher sentencing guidelines on violent protests, they should not be applied retrospectively to the trio. And it said the lower court should not have agreed to hear the appeal.

That is mystifying. How can the lower court be right to set future sentencing guidelines yet wrong to hear the appeal of the trio? How could it have set new guidelines if it did not hear the appeal?

I don’t want to believe our top court and some judges are politicised but it seems they almost always treat young activists more leniently than others. Some have suggested to me that the judges are doing this to send Beijing a message not to regard the courts as part of the administration.

With the inevitable ban on independence activist Andy Chan Ho-tin’s political party, the decision will most likely be challenged in court. Beijing will, of course, want the courts to uphold the ban. How will our judges rule?

Michael Chugani is a Hong Kong journalist and TV show host