Protesters' prosecutions call for a sensible approach
Department of Justice faces delicate task of how to deal with arrested protesters
More than 320 people have been arrested over the Occupy Central protests. In theory, thousands may be liable to prosecution. How should the Department of Justice handle potential prosecutions?
As the police will obtain the department's advice before laying charges, it plays a central role in deciding the appropriate criminal justice response. Its task will not be easy.
Already, pro-establishment legislators are asking how prosecutions will be handled, while the public is concerned a stricter approach to cases of public order has been adopted in recent times.
Above all, the department needs to be, and appear to be, apolitical. This lies at the heart of Article 63 of the Basic Law.
Secretary for Justice Rimsky Yuen Kwok-keung has stated: "All prosecution decisions are … totally free from any political, media or public pressure." For this reason, he should consider delegating authority to the director of public prosecutions to avoid any public perception of bias, since the protests are directed in part at a reform task force of which he is a member.
In the past few years, the department has taken a diversionary approach to public order cases. Only serious cases are prosecuted. In others, the defendant is bound over - a charge is laid and later withdrawn - or a warning letter is issued.
The 2013 Prosecution Code acknowledges offences committed while exercising basic freedoms "may give rise to special considerations" and prosecution "should only be pursued when the relevant conduct exceeds sensible proportions or the bounds of reasonableness".
Applying this approach to Occupy, alternative measures should be available to those who have protested in a non-violent manner. Their offences may have been no more serious than assault, criminal damage to property, public obstruction, disorderly behaviour, unauthorised assembly or unlawful assembly.
Where a person has inflicted unjustified injury on someone else or caused serious damage to property, prosecution should be considered using the established two-part test - sufficiency of evidence and public interest.
Public interest considerations in favour of alternative measures include whether the person was motivated by civil disobedience, has shown remorse and cooperation, or has tried to compensate. Age is also a factor.
Professor Simon Young Ngai-man is an associate dean in the University of Hong Kong's law faculty