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Occupy Central

Pro-democracy activists freed by Hong Kong's highest court on grounds they suffered a grave injustice after jailing for ‘extremely violent’ protest

Cheers and applause greets decision at Court of Final Appeal as group of 13, who were originally sentenced to community service, are released immediately

PUBLISHED : Friday, 07 September, 2018, 3:06pm
UPDATED : Sunday, 09 September, 2018, 5:52pm

Thirteen activists jailed over an “extremely violent” 2014 protest against government development plans for the New Territories were freed on Friday after winning their appeal at Hong Kong’s top court, which ruled in their favour on the grounds of “grave injustice”.

Chief Justice Geoffrey Ma Tao-li announced the Court of Final Appeal’s decision immediately after defence lawyers had completed their argument that the defendants had been subjected to “substantial and grave injustice”, when the lower appellate court replaced their community service orders with jail terms of up to 13 months.

“The appeal is allowed, the sentences are set aside,” Ma said.

The court will reveal its reasons in detail for the ruling at a later date.

Loud cheers and applause erupted as soon as the activists emerged from the dock to greet their families and friends, who filled the courtroom and its side chamber to watch.

All 13 men and women had been convicted of unlawful assembly, punishable by three years in prison, for trying to storm the Legislative Council complex in a violent manner, with the intent to enter the building on June 13, 2014.

At the time of the offence, lawmakers were debating a controversial government development project in the northeast New Territories.

Damage to the Legco facilities cost more than HK$400,000, and an injured security guard needed 85 days of sick leave in the aftermath.

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Trial magistrate Jason Wan Siu-ming found the activists guilty in February 2016, and sentenced them to between 120 and 150 hours of community service.

But in August last year the Court of Appeal sided with the government in a sentencing review, and imposed custodial terms after concluding that jail was the only option.

One of the activists, League of Social Democrats vice-chairman Raphael Wong Ho-ming, said the group was happy and excited by the top court’s “reasonable judgment”.

However, he disagreed with Ma’s description of the protest as “extremely violent”, saying: “We call it force, not violence, because we have no intention, we have no intention at all, to hurt anybody.”

Wong also maintained their continuing opposition to development in the northeast New Territories, but acknowledged there was a need to revise their future strategy.

“We have to be well organised and well disciplined in the [social] movement later on,” Wong said.

Beside him stood activist Ho Kit-wang, who later wept outside court.

The activists had already served 100 to 134 days behind bars, on top of their earlier community service orders.

Their case is closely linked with the bittersweet court battle won by student leaders Joshua Wong Chi-fung, Nathan Law Kwun-chung and Alex Chow Yong-kang in February. The sentences of the trio who led the Occupy protests of 2014 were similarly toughened by the Court of Appeal following the government’s successful review of their initial non-custodial sentences last August.

The Court of Final Appeal quashed the trio’s jail terms and endorsed the lower appellate court’s new sentencing guidelines that push for heavier punishments in cases of violent unlawful assemblies, but ruled that it should not be applied retrospectively.

In a similar vein, Ma noted on Friday the Court of Appeal had applied its new guidelines in the present case and questioned how the judges had arrived at their sentence.

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“It’s difficult to see how the court can get to 15 months as a starting point [of sentence],” Ma said.

“I accept that,” the director of public prosecutions David Leung Cheuk-yin SC replied.

But prosecutors maintained that it was right for the Court of Appeal to hand out jail terms because they were “the only appropriate sentence” given the aggravating features that included the protesters storming the Legislative Council while it was in session.

Defence counsel Martin Lee Chu-ming SC disagreed, arguing that community service was the right sentence, given the level of violence.

“A lenient sentence is not necessarily inadequate,” defence counsel Philip Dykes SC said. “We say the sentences here are lenient, but not wrong in principle or manifestly inadequate.”

But Lee’s argument prompted Ma to ask: “Are you saying this was not a violent event? Are you trying to minimise the violence?”

“There is a degree of violence,” Lee replied.

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Defence counsel Hectar Pun SC said the case was different because it involved a peaceful protest marred by “sporadic violence” triggered by the news of Legco’s vote on the New Territories development.

He also argued that magistrate Wan had considered imprisonment but felt a community service order “duly reflected the seriousness of the offence and fell within the reasonable range of sentence”.

“The appropriate sentence has been determined by the learned magistrate,” Pun said.

Alongside Wong and Ho, the other activists released were Leung Hiu-yeung, Lau Kwok-leung, Leung Wing-lai, Ivan Lam Long-yin, Chu Wai-chung, Wong Kan-yuen, Kole Chow Koot-yin, Yim Man-wa, Billy Chiu Hin-chung, Kwok Yiu-cheong, and Chan Pak-shan.