Charges against Occupy leaders unconstitutional, ‘beyond criminal law’, lawyer argues
Gerard McCoy SC wants charge of inciting people to further instigate others to cause public nuisance quashed, saying double criminality is ‘unknown to the law’
The founders of Hong Kong’s 2014 pro-democracy Occupy protests will find out next month whether the charge against them is constitutional or not.
Academics Benny Tai Yiu-ting and Dr Chan Kin-man, Reverend Chu Yiu-ming and five leading protesters have been charged with “incitement to incite public nuisance” in the lead up to 79 days of protests for greater democracy that paralysed the city’s thoroughfares.
Prosecutors allege that the eight defendants “unlawfully incited persons present” in Tim Mei Avenue and Fenwick Pier Street “to incite other persons to cause a public nuisance” by unlawfully obstructing the carriageways.
The offence is punishable by up to seven years in jail.
But Gerard McCoy SC, who tabled a motion to quash the charge, argued for the trio that the offence of double incitement had “gone too far” because it was unconstitutional.
“Double criminality is unknown to the law [and is] beyond criminal law,” he told District Judge Johnny Chan Jong-herng. “If it can be double, it can be triple, and it can go on.”
McCoy also noted that prosecutors had skipped a step by not charging those present in Tim Mei Avenue and Fenwick Pier Street of inciting other persons to cause a public nuisance. “That is fatal to their case,” he added.
But the judge countered that this was not his understanding of the charge or the prosecution case, and said that prosecutors did not have to prove that those present had incited others.
Director of Public Prosecutions David Leung Cheuk-yin SC further explained that those present were not charged because prosecutors had no evidence of their identity or whether they had caused any further incitement.
“The gravamen of the charge is [the defendants] incited [the others present] to incite [the other persons], therefore [the defendants are] charged,” the prosecutor explained.
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The judge will deliver his ruling on February 13.
Nine people were charged in the present District Court case, which has been moved to the newer West Kowloon Court, equipped with a bigger and more technologically advanced courtroom.
They are the trio – Tai, Chan, and Chu – lawmakers Tanya Chan and Shiu Ka-chun, former lawmaker Lee Wing-tat, activist Raphael Wong Ho-ming and former student leaders Tommy Cheung Sau-yin and Eason Chung Yiu-wah.
All but Lee were charged with inciting people to incite others to cause public nuisance. Other charges are conspiracy to commit public nuisance and incitement to commit public nuisance.