‘Lenient’ Hong Kong court sentences come with a warning: patience for violent protests has run out

Cliff Buddle says two court decisions this year which freed young protesters have been criticised as too light, but both rulings clearly warn that, in future, demonstrations that end in violence will be dealt with sternly

PUBLISHED : Wednesday, 10 October, 2018, 7:03am
UPDATED : Wednesday, 10 October, 2018, 8:25am

A decision by Hong Kong’s top court last month to free 13 demonstrators jailed for unlawful assembly brought a dramatic tale of two protests to an end. 

It took more than four years for the case, involving a protest in June 2014, to work its way through the court system, with rulings at three different levels. The judgment followed a similar ruling in February concerning another protest that year, involving three prominent young activists, including Joshua Wong Chi-fung.

The legal drama had sparked controversy, with courts coming under fire from either supporters or detractors of the protesters, depending how each judgment was viewed. Some of the comments were highly emotive, and there were even suggestions that Hong Kong’s judicial independence had been compromised.

Now that the two cases are over, there is a need for calm reflection. They reveal the city’s legal system at work, with judgments delivered, precedents reviewed, different factors weighed and sentences pronounced.

It would be easy to think that the Court of Final Appeal took a lenient view by deciding not to send any of the protesters to jail. Last month’s ruling prompted one pro-establishment politician to brand the judges “sinners of society” and “killers of young people” on social media.

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But the significance of the rulings lies not so much in the fate of these 16 protesters, who were dealt with under the law which existed at the time they committed the offences. The legacy of the rulings will be the prospect of much tougher sentences in the future for protests involving disorder or violence.

The judgment in September involved 13 protesters objecting to development work in the New Territories. Hundreds of demonstrators attempted to break into the Legislative Council building in June 2014. The court said bamboo poles and metal bars had been wielded during the protest “with considerable violence”. The police used riot shields and pepper spray to prevent the demonstrators forcing their way in. A security officer suffered broken toes and HK$400,000 worth of damage was done. “It was, on any view, a violent incident,” said the court.

In the light of such findings, it may seem surprising that the demonstrators were released by the court instead of being sent back to prison.

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But the five judges did, in effect, impose prison sentences. The reason the protesters did not return to jail is because they had already served these terms, once deductions were made for good behaviour, before being released on bail ahead of the appeal.

The court found middle ground between the magistrate who had imposed community service orders and the Court of Appeal, which had sent the protesters to jail for up to 13 months. It said the appropriate sentence was a short term of imprisonment. Indeed, this is what the secretary for justice had originally requested of the Court of Appeal.

The magistrate had been wrong not to send the protesters to jail. But the Court of Appeal had gone too far the other way, by applying its own new, stricter sentencing guidelines for such protests retrospectively.

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The law to be applied was that which existed at the time the offences were committed, said the top court. A review of previous cases involving unlawful assembly showed that non-custodial sentences were usually passed. With the exception of a much more serious case during the 1967 riots in the city, the highest starting point for sentencing adopted by the courts in cases of unlawful assembly had been six months. And that was the sentence adopted by the Court of Final Appeal in this case.

Rather than being lenient, the court was adopting a sentence at the higher end of the range available. If the magistrate had imposed such a sentence at the outset, instead of community service, it is unlikely opponents of the protesters would have been so vocal in their criticism. The protesters did not escape jail – they had effectively already served the sentence the top court imposed.

The top court had adopted a similar approach in its earlier ruling on the other protest, involving activists Wong, Alex Chow Yong-kang and Nathan Law Kwun-chung.

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They, too, had been given non-custodial sentences by a magistrate only for these to be replaced, at the request of the government, by prison sentences of up to eight months by the Court of Appeal.

This demonstration, which occurred just before the mass Occupy protests in 2014, was viewed by the Court of Final Appeal as being less serious than the one in the other case. The magistrate had been entitled, according to the law that applied at the time, to impose non-custodial sentences, the court ruled.

The two judgments by the top court meant that none of the protesters needed to return to jail. In future, however, demonstrators who take part in unruly or violent protests can expect tougher treatment.

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New, stricter sentencing guidelines introduced by the Court of Appeal in the Wong case will now apply. The courts will weigh various factors and principles. Youth will be considered a strong mitigating factor. The motives of protesters can be taken into account. But the use of civil disobedience to fight for a noble cause will be unlikely to prompt leniency from the courts if the demonstration has turned violent.

Most worrying for protesters will be the court’s view that higher sentences are needed to deter others. In the Wong case, the Court of Appeal said that, with increasing incidents of unrest in Hong Kong and more large-scale protests, “it is now necessary to emphasise deterrence and punishment in large scale unlawful assembly cases involving violence”.

This assertion was upheld by the top court. At the end of last month’s ruling, it issued a warning about the future treatment of such protests, saying: “We reiterate the much stricter view to be taken when sentencing in this context where disorder or violence is involved.”

The two protest cases caused much controversy and different courts at different levels reached different conclusions. Ultimately, all protesters involved walked free. But the result of all these cases is that, in future, we can expect tougher action from the courts.

Cliff Buddle is the Post’s editor of special projects