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Lawyers confident three jailed Hong Kong student protesters will receive leave to appeal against prison terms

Case described as involving significant public interest and legal principles

PUBLISHED : Friday, 18 August, 2017, 10:03pm
UPDATED : Saturday, 19 August, 2017, 2:13am

Lawyers say they are confident the three Hong Kong student leaders sentenced to prison by the Court of Appeal on Thursday will be granted leave to appeal at the city’s top court.

Their prediction on the case of Joshua Wong Chi-fung, Nathan Law Kwun-chung and Alex Chow Yong-kang came as former student leader Lester Shum revealed that the trio’s legal teams were studying the judgment and preparing grounds for the appeal.

Lawyer Michael Vidler said his team had visited Wong at the Pik Uk Correctional Institution to prepare an application for leave to appeal, due on September 14. He explained they could either look at the way in which the Court of Appeal had conducted the case or the actual sentencing.

“I believe the questions posed to the court will be of sufficient interest for [it] to grant them leave,” Vidler told the Post. If successful, they will apply for bail pending appeal before a single judge or a three-judge committee.

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But executive councillor Ronny Tong Ka-wah said the three activists would face a challenge at the Court of Final Appeal because it rarely interfered with sentences imposed by the lower appeal court unless fundamental errors had been made.

Lawyer Jonathan Man Ho-ching who represents Law and Chow said: “We are aware it will be difficult but we will try our best.”

Civic Party chairman Alan Leong Kah-kit, also a barrister, said the case involved significant public interest and legal principles.

“The magistrate [in the Eastern Court] had considered whether the students were sincerely acting on their ideals and concern for society. They were not doing it for personal gain or to hurt anybody,” he said. “Yet, the Court of Appeal treated them like drug kingpins, murderers or arsonists ... This would affect society’s way forward and values.”

University of Hong Kong law professor Benny Tai Yiu-ting said the students’ motive behind the crime should have been given more weight during sentencing, as civil disobedience had a long tradition in common law.

His colleague Eric Cheung Tat-ming, meanwhile, observed that the case had deviated from accepted norms in terms of how the sentencing review lodged by the government had been handled.

“I personally find there’s room to appeal against the Court of Appeal ruling,” he said after studying the 64-page judgment. “It’s reasonably arguable that [it] had made an error.”

Cheung said he agreed with most of the past cases and legal principles cited by the court, such as the need to impose deterrent sentences for violent offences regardless of the motivation behind the crime. But instead of making its ruling based on the trial magistrate’s factual judgments, the Court of Appeal had “reinterpreted facts”, he said.

The judges were previously told Wong and Chow had climbed over a fence into the government headquarters compound, known as the Civic Square, on September 26, 2014 while Law had incited others to follow suit.

Hundreds of protesters eventually answered their call to storm the closed site, despite attempts by security guards and police officers to stop them. Ten officers were injured.

The trial magistrate had ruled the three student leaders did not use any violence and concluded it was their disruptive behaviour that caused a breach of public peace and others to reasonably fear for their safety.

But Court of Appeal vice-president Wally Yeung Chun-kuen found the trio must have known there would be conflict between the large crowds pouring into the compound and the officers. He also concluded that the storming was extremely likely to cause injuries, deaths and property loss.

Cheung said the Court of Appeal ought to consider whether the sentence was wrong in principle or manifestly inadequate based on the magistrate’s finding of facts.

“[It] should not violate the magistrate’s finding and reinterpret the facts to draw a different conclusion for sentencing. This is essential,” he explained. “This happens, and when it does we take it to the higher court.”