Charges against Hong Kong Occupy leaders are ‘prosecution overkill’, barrister says

A barrister representing the three founders of Hong Kong’s 2014 pro-democracy Occupy movement demanded on Tuesday for prosecutors to account for the fate of 700 other arrested protesters who have yet to face legal proceedings.

Gerard McCoy SC raised the issue as his clients – academics Benny Tai Yiu-ting and Dr Chan Kin-man, and Reverend Chu Yiu-ming – and six other leading protesters arrived at the District Court for a procedural hearing. The group faces a variation of public nuisance charges.

The lead counsel said there were lawyers and potential witnesses among the 700 who wanted to help with the case, but their status was “precarious” as they might be prosecuted. “Are we to now take it that nothing is to happen to the 700?” McCoy said.

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He said the prosecution and defence were “separated significantly” over how the case was being handled, and added that this had to be addressed at the coming four-day pretrial review, expected to start on January 9 next year.

McCoy argued that the charge sheet for his clients was “overcomplicated and overloaded”, and amounted to “prosecution overkill”. He said prosecutors combined “the most unusual and strange charges” adding that some were just extensions of a previous charge or were even unconstitutional.

One example of an unconstitutional offence cited was the “curious and downright strange” charge of incitement to incite public nuisance faced by seven of the nine defendants. McCoy said the offence was “unknown to the law”.

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“[My clients] acknowledge and will not dispute facts that show their action and conduct,” he told judge Anthony Kwok Kai-on.

“Indeed they remain highly motivated to admit their responsibility had they been charged with the correct and the only proper offence, namely, unauthorised assembly ... Instead the prosecution has reached into its bag of arcane and extraordinary offences.”

McCoy further questioned why the nine were tried together, when some of the alleged offences took place at different locations.

He also said that prosecutors had yet to provide satisfactory answers to past questions raised, such as the definition of some of the acts deemed as offences that spanned 21 months, the identities of co-conspirators and the exact locations of the offences.

“The choreography of charges and blend of allegations is a recipe for disaster in terms of efficiency and fairness for the defendants,” he continued.

Deputy director of public prosecutions David Leung Cheuk-yin SC did not respond.

But the two opposing counsels shared the same view in criticising members in the public gallery who chanted support for the defendants in the dock.

Five minutes before the hearing commenced, supporters had chanted “Shame on political prosecution!” and “Support Wong Ho-ming!”, referring to the vice-chairman of the League of Social Democrats who was recently jailed over a separate case.

Without commenting on the content of the chants, prosecutor Leung said there were limits to freedom of expression as the court was not a public place.

“Such conduct in the courtroom, even in the absence of your lordship, is deprecated and may amount to criminal contempt,” he complained to the judge.

His views were shared by McCoy, who called the incident “outrageous” and “intolerable”. “Orchestrated chanting like that may be appropriate for the Dragon Boat festival,” he said.

Tai, Chan and Chu each face three charges: conspiracy to cause public nuisance, inciting others to cause public nuisance, and inciting people to incite others to cause public nuisance.

Other defendants, lawmakers Tanya Chan and Shiu Ka-chun, as well as former student leaders Tommy Cheung Sau-yin and Eason Chung Yiu-wah, each face two incitement charges; and so does Wong Ho-ming.

Former lawmaker Lee Wing-tat faces one charge of inciting others to cause public nuisance.

Each charge carries a maximum sentence of seven years in jail.