Occupy Central

Nine Occupy protesters facing rarely sought charges, Hong Kong legal experts say

Public nuisance offences described as ‘not at all common’

PUBLISHED : Tuesday, 28 March, 2017, 9:18pm
UPDATED : Tuesday, 28 March, 2017, 10:14pm

The charges faced by nine Occupy leaders and protesters due in court tomorrow are rarely sought offences requiring prosecutors to prove the accused obstructed the public in exercising their rights, legal experts said.

Three Occupy Central founders – academics Benny Tai Yiu-ting and Dr Chan Kin-man, and the Reverend Chu Yiu-ming – were arrested on Monday, each facing one count of conspiracy to cause public nuisance, inciting others to cause public nuisance, and inciting people to incite others to cause public nuisance.

Lawmakers Tanya Chan and Shiu Ka-chun as well as former student leaders Tommy Cheung Sau-yin and Eason Chung Yiu-wah each face the two incitement charges, as does League of Social Democrats vice-chairman Raphael 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.

Timing under debate as nine Occupy participants charged a day after Carrie Lam wins chief executive election

The nine are expected to appear at Eastern Court on Thursday. The case is to be transferred to the District Court.

University of Hong Kong principal law lecturer Eric Cheung Tat-ming said public nuisance offences descend from common law and were seldom sought.

Criminal defence lawyer Jonathan Midgley described the charges as “not at all common”.

Public nuisance is defined in the influential British case R v Rimmington as an act or omission endangering the life, health, property or comfort of the public, or one obstructing the public in the exercise of rights common to everyone.

Cheung said the present case would likely centre on obstruction.

He said blocking major highways could be a “classic example”, citing British activist Matt Pearce – nicknamed “Spiderman” – who was found guilty of public nuisance after climbing a building in Central in his superhero suit in 2005 and clambering the Tsing Ma Bridge in 2008.

Retired Hong Kong policeman charged with assault for striking bystander during Occupy protests

Midgley said he did not know what defence would be mounted but thought a possible argument might be that what was done was not contrary to the public interest.

It was rare to see a double incitement charge, the two added.

Cheung explained the charge as akin to a meeting in which one tells attendees what to do and they subsequently instruct others.