‘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
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.
Hong Kong democracy activists Joshua Wong, Nathan Law and Alex Chow win final appeal, spared jail sentences
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.
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.
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 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.
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.
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.
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.
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