Hong Kong courts

13 Hong Kong democracy activists granted leave to appeal against jail terms for protest over New Territories development

Chief Justice Geoffrey Ma Tao-li gives the green light on grounds that substantial and grave injustice may have been done

PUBLISHED : Wednesday, 21 March, 2018, 2:57pm
UPDATED : Thursday, 22 March, 2018, 10:10pm

Thirteen democracy activists jailed over a 2014 protest against northeast New Territories development were on Wednesday granted leave to appeal against their sentences by Hong Kong’s top court.

Chief Justice Geoffrey Ma Tao-li announced after a brief discussion with two judges: “We grant leave to appeal to each of the defendants on the grounds it is reasonably arguable that substantial and grave injustice has been done.”

The appeal will look at whether the jail terms of eight to 13 months handed out to the activists last August were excessive under the existing and prevailing sentencing guidelines at the time of the offence.

Two younger members of the group, Ivan Lam Long-yin and Chu Wai-chung, were also permitted to challenge whether a lower appeal court had properly considered restrictions under the Criminal Procedures Ordinance when sentencing defendants under the age of 21.

The case is closely linked with a bittersweet court victory last month by student leaders Joshua Wong Chi-fung, Nathan Law Kwun-chung and Alex Chow Yong-kang. The three Occupy activists had initial non-custodial sentences for an illegal protest similarly enhanced to jail terms by the Court of Appeal following a review.

The Court of Final Appeal however eventually quashed those prison terms, which were handed down last August. It endorsed new sentencing guidelines that push for heavier punishments in cases of violent unlawful assembly, but ruled they should not be applied retrospectively to Wong, Law and Chow.

In a similar vein, the top court on Wednesday granted the 13 activists leave to appeal against their jail terms, on grounds that their punishments might have been excessive under sentencing guidelines.

Hong Kong activists who stormed Legco over New Territories land plan see convictions upheld

The appeal is scheduled for September 7.

The 13 activists emerged all smiles from the High Court on Wednesday morning after a hearing before chief justice Ma, Mr Justice Roberto Ribeiro and Mr Justice Joseph Fok. They held up a black banner opposing development plans in the northeast New Territories, close to Hong Kong’s border with the mainland Chinese city of Shenzhen.

“The land belongs to the people, withdraw northeast development,” they chanted.

Beside them, pro-democracy activist Jaco Chow Nok-hang called on the public to watch government plans to develop the area, as well as Yau Tsim Mong district in downtown Kowloon.

“The northeast defendants hope all Hongkongers will continue to preserve our community and strive for a just society,” he said.

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

Why were 13 Hong Kong protesters jailed, and what does this mean for future demonstrations?

Damage to the facilities cost more than HK$400,000 (US$51,000) in repairs, and a security guard needed 85 days of sick leave in the aftermath.

Trial magistrate Jason Wan Siu-ming gave the 13 men and women 120 to 150 hours of community service as punishment in February 2016.

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

The activists are Leung Hiu-yeung, Lau Kwok-leung, Leung Wing-lai, Ivan Lam Long-yin, Chu Wai-chung, Ho Kit-wang, Wong Kan-yuen, Kole Chow Koot-yin, Yim Man-wa, Billy Chiu Hin-chung, Kwok Yiu-cheong, Chan Pak-shan and Raphael Wong Ho-ming, vice-chairman of political party the League of Social Democrats.

On Wednesday, defence counsel Hectar Pun Hei SC argued that his clients had been the victims of a substantial and grave injustice.

“Thirteen months is manifestly excessive,” he said.

There was also debate over the point in time from which the court should consider age restrictions in sentencing.

The Criminal Procedures Ordinance states the courts cannot jail convicts aged between 16 and 21 unless there are no other appropriate options, or unless they have committed very serious crimes such as murder, manslaughter or rape.

Pun said these restrictions should be taken into account from the time of conviction. But counsel Martin Lee Chu-ming SC observed that it would be unfair to the defendant if a trial commenced three years after an offence. His client, Ivan Lam, was 19 at the time of the offence, 21 at the time of conviction, and 23 when the Court of Appeal enhanced his sentence.

Director of public prosecutions David Leung Cheuk-yin SC suggested in reply that one should look at the date of sentencing, not the offence.

The court will hear full arguments during the appeal.