Hong Kong court rejects appeal bids by two jailed Occupy activists Nathan Law and Alex Chow
Court of Appeal says pair failed to present arguable case to show its three judges erred by jailing them
A Hong Kong court has rejected appeals by two young democracy activists against jail terms handed down for their roles in an illegal protest.
The Court of Appeal on Thursday dismissed applications by Nathan Law Kwun-chung, 24, and Alex Chow Yong-kang, 27, for a certificate to the Court of Final Appeal after finding they had failed to show its three judges erred in replacing their non-custodial sentences with jail terms, as sought by the government.
Under Hong Kong law, leave to appeal to the city’s top court can only be granted if the lower Court of Appeal certifies that a point of law of great and general importance was involved in the decision, or when it is shown that substantial and grave injustice has been done.
Although Law and Chow failed to convince the Court of Appeal on Thursday, they have also taken a separate route along with co-defendant Joshua Wong Chi-fung, 21, to appeal directly to the Court of Final Appeal on the grounds that substantial and grave injustice has been done.
A hearing for that argument has already been scheduled for November 7 by Chief Justice Geoffrey Ma Tao-li, who released Wong and Law on bail on Tuesday pending the appeal.
On Thursday, Law said the latest ruling was within their expectations.
“It doesn’t really affect our plan on the Court of Final Appeal, and it doesn’t really make us more or less optimistic,” he said after collecting the 27-page judgment. “We are prepared for the worst.”
The trio were convicted over their roles in the storming of the Hong Kong government’s headquarters in 2014 that led to the 79-day occupation of major roads across the city in a civil disobedience campaign known as the Occupy movement. The protests aimed to extract concessions from Beijing on democratic development in Hong Kong.
All three activists, who were key leaders in Occupy, completed the non-custodial sentences handed down last year by a magistrate over the incident, but the Hong Kong government twice lodged applications to review the sentences and successfully convinced three Court of Appeal judges in August that jail terms were needed to replace the initial “manifestly inadequate” sentences.
In their review, the three judges, Court of Appeal vice-president Wally Yeung Chun-kuen, Mr Justice Jeremy Poon Shiu-chor and Mr Justice Derek Pang Wai-cheong, concluded that the magistrate had failed to consider that the three had engaged in serious and large-scale unlawful assembly which involved violence.
The activists were subsequently given jail terms of six to eight months.
In written submissions filed to the same panel of judges, Robert Pang Yiu-hung SC argued that the Court of Appeal effectively increased his client Law’s sentence based on facts that were not made at the trial or ran contrary to the trial magistrate’s findings.
Pang questioned whether the Court of Appeal was entitled to do this, and as this was a question of law involving great and general public importance, it should be debated at the higher court.
His argument was echoed by Chow’s counsel Edwin Choy Wai-bond, who noted that the Court of Appeal must not act as a fact-finding body.
But deputy director of public prosecutions David Leung Cheuk-yin SC countered that no fresh evidence was admitted during the sentencing review, and observed that the Court of Appeal merely gave the existing facts and evidence their proper weight to consider if the sentences were adequate.
Leung further argued that if the grounds for review was that the trial magistrate made an erroneous factual finding or ignored certain findings in sentencing, the Court of Appeal certainly had the power to re-look the admitted evidence and consider an appropriate sentence.
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Otherwise, it would result in an absurdity, where sentencing mistakes could never be rectified by the Court of Appeal in a review application, he said.
The three judges adopted the prosecutor’s argument.
“If so, the Court of Appeal is entitled to interfere,” the judges wrote. “Neither Mr Pang nor Mr Choy has been able to show an arguable case that we have erred in how we dealt with the matter in such manner.”