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Occupy Central

Jailed activists’ appeal against terms can proceed, Hong Kong court rules

‘Points of law of great and general importance’ cited

PUBLISHED : Tuesday, 14 November, 2017, 9:19pm
UPDATED : Friday, 24 November, 2017, 12:31pm

A Hong Kong court that beefed up sentences for 13 pro-democracy activists in August has now backed eight applicants’ appeal against their new jail terms.

The Court of Appeal on Tuesday certified that “points of law of great and general importance” were involved in four of the questions raised by eight men and women to enable them to obtain leave to appeal to the higher court.

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These questions were in line with the three legal issues raised in a separate appeal lodged by Occupy movement leaders Alex Chow Yong-kang, Nathan Law Kwun-chung and Joshua Wong Chi-fung.

The Court of Final Appeal last week granted the trio leave to challenge jail terms after a sentencing review that was similarly sought by the government, but over a different protest in the lead-up to Hong Kong’s 2014 Occupy movement for greater democracy in the city.

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The trio’s appeal hearing on January 16 next year is to consider the extent the Court of Appeal is allowed to change the factual basis of the original sentence. It is also to consider how much a sentencing court should factor in the motives of a defendant found guilty of committing a crime as an act of civil disobedience or in the exercise of a constitutional right.

“In light of the [Court of Final Appeal’s] determination, we would allow the certification,” the judges wrote in a 22-page judgment.

Lawyer Jonathan Man Ho-ching said all 13 would file applications this week to seek leave to appeal from the Court of Final Appeal. Some of them were also expected to apply for bail, pending their appeal.

The judgment drew more than 100 family members and supporters for a brief reunion with the 13 young activists after three months of separation. The activists appeared tired in the dock but happy to see their families and friends waving and cheering from the public gallery.

“The land belongs to the people,” League of Social Democrats vice-chairman Raphael Wong Ho-ming shouted before he was taken away.

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All 13 were convicted of unlawful assembly, punishable by three years’ imprisonment, for charging at the Legislative Council complex in a violent manner with the intent of entering the building on June 13, 2014, when lawmakers were debating a controversial government development project in the northeast New Territories.

Damage to the facilities cost more than HK$400,000 in repairs, and a security guard needed 85 days of sick leave.

As punishment, magistrate Jason Wan Siu-ming gave the 13 men and women between 120 and 150 hours of community service in February last year.

But before all of them could complete those hours, the Court of Appeal sided with the government in a sentencing review in August to impose custodial terms of up to 13 months after finding jail was the only sentencing option.

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All but one of the 13 subsequently filed notices of motion and raised 11 questions to apply for certification from the same court presided by Court of Appeal vice-president Mr Justice Wally Yeung Chun-kuen, Mr Justice Jeremy Poon Shiu-chor and Mr Justice Derek Pang Wai-cheong.

On Tuesday, the three judges certified four questions raised by eight of the applicants.

They were Kole Chow Koot-yin, Chu Wai-chung, Ho Kit-wang, Kwok Yiu-cheong, Leung Hiu-yeung, Leung Wing-lai, Raphael Wong and Yim Man-wa.

Among them, five questioned whether the court should adopt the sentencing principles laid out by the same panel of judges in the Occupy trio’s case.

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The others questioned whether the Court of Appeal must proceed on the basis of the factual findings of the lower court and how the court should approach the motive of civil disobedience in sentencing.

They also asked if the court should consider whether the penalty was compatible with the Basic Law – Hong Kong’s mini-constitution – and the Bill of Rights when sentencing offenders of illegal conduct that involves expression or assembly.

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Chan Pak-shan, Lam Long-yin, Lau Kwok-leung and Wong Kan-yuen raised seven other questions. But they were all dismissed because the judges found they were either not questions of law, not arguable or not related to their judgment handed down in September.

A 13th defendant, Chiu Hin-chung, is to appeal directly to the Court of Final Appeal.