On August 17, a Hong Kong appeals court sentenced student democracy activists Joshua Wong, Alex Chow, and Nathan Law to six to eight months imprisonment. The three had earlier been convicted of crimes related to unlawful assembly during a demonstration in 2014 when they had crossed a police barrier, but the lower court had sentenced them only to community service and a suspended jail sentence, arguing that their breach had been a form of political expression. But even in Hong Kong, a city which has enjoyed political freedoms absent elsewhere in China, it was the preservation of “public order” the court chose to emphasize. “To disrupt public order and public peace in the name of free exercise of powers,” said court Vice President Wally Yeung Chun-kuen, “will cause our society to descend into chaos.” The new sentence, which the three plan to appeal, also carries a five-year prohibition on running for elected office in Hong Kong. —The Editors
Hong Kong’s Court of Appeal has sentenced democracy activists Joshua Wong, Nathan Law and Alex Chow to six to eight months in prison. The jail term also means that they cannot stand for elections for a period of five years.
They are of course political prisoners. This not a case where people are accused of stealing fish. The defendants’ actions were political, and so is the government’s prosecution.
The court system’s decision is also political as well as legal. Since the issue is one of sentencing rather than guilt, the decision inevitably reflects an exercise of discretion involving the political views of the three appellate court judges. Actually, the decision apparently reflects the political views of one judge, Wally Yeung, who is said to dominate the other two by dint of his strong personality. His handling of similar cases had led informed observers to expect a much harsher sentence than the lower court thought appropriate, and this view is now vindicated.
Beijing and the Hong Kong Secretary for Justice, who reportedly pursued the government appeal against the advice of senior members of his staff, must be licking their chops.
Yet the defendants still have a chance to file their own appeal to the Court of Final Appeal. If that is not permitted – again an exercise of judicial discretion, the cries of injustice already rising in Hong Kong and abroad will understandably reach fever pitch, especially if the defendants’ applications for bail pending further review are denied.
There has, rightly, been international concern over the decision by Hong Kong’s Court of Appeal to increase – retroactively and drastically – the sentences of democratic activists Joshua Wong, Alex Chow, and Nathan Law. Their imprisonment marks a dark new chapter in Hong Kong’s constitutional and political history. However, it would be a mistake to focus exclusively on the plight of the three former student leaders, or to dwell on the political conservatism of individual judges. Rather, this case should prompt serious reflection on two broader, related developments in Hong Kong: the persecution of democratic politicians and activists within the territory, and a series of highly questionable decisions by the Department of Justice under the leadership of Secretary for Justice Rimsky Yuen.
First, although Wong, Chow, and Law are unique in the degree to which they have attracted global attention, they were not the first to be targeted for reprisals. Earlier in the same week, the Court of Appeal (staffed by the same judges who sentenced Wong et al.—Vice-President Wally Yeung, and Justices of Appeal Poon Shiu-chor and Derek Pang increased the sentences of thirteen activists who protested against a development project in Hong Kong’s northeastern New Territories in 2014 from community service to imprisonment. Nor will they be the last: prosecutions and sentences relating to other protests, such as the November 2016 protest against Beijing’s most recent “interpretation” of the Basic Law to expel two politicians from Hong Kong’s legislature, are also on the horizon.
The acts of retaliation are not confined to criminal prosecutions. Mr. Law was a legislator until he was expelled (along with three other pro-democracy politicians) from the legislature in July 2017, after the Department of Justice challenged their oaths of office; more may also be at risk of expulsion. The proliferation of civil and criminal suits—including a defamation suit filed by now-former Chief Executive CY Leung—means that pro-democracy politicians face bankruptcy due to onerous legal fees. Imprisonment and bankruptcy would both serve to preclude politicians from running for elected office. Further, as I noted previously on ChinaFile, activists now face difficulties forming companies, opening bank accounts, or even selling Lunar New Year merchandise. Unlike Wong, Chow, and Law, many of the targeted figures are little known outside Hong Kong—giving them much less protection from such reprisals.
Second, the Department of Justice—and its head, Rimsky Yuen—bear much of the responsibility for the ongoing official retaliations, notwithstanding the Department’s strenuous denials that the prosecutions are politically motivated. Under Hong Kong’s common law system, the decisions of whether to prosecute, what charges to pursue, and which court to pursue them in (and hence what sentences are available) are all made by the Department of Justice. So, too, was the decision to challenge the original sentences imposed on Wong, Chow, and Law – a decision that Secretary Yuen, a political appointee, apparently made in defiance of the advice of senior prosecutors. For the Department baldly to assert that “the state of judicial independence in the HKSAR cannot be doubted” amounts to an abdication of its constitutional responsibility to exercise prosecutorial discretion in the public interest.
The DOJ’s relentless pursuit of political opponents—and its pointed refusal to take responsibility for doing so—reflect a failure of leadership. As noted previously, Secretary Yuen appears to have taken the position that “rule of law” is only valuable insofar as it is “good for business.” In perhaps the most candid expression of this philosophy, Yuen defended controversial arrangements under which part of Hong Kong’s express-rail terminus would be leased to the Mainland and governed by Mainland law by claiming that “Hong Kong’s legal system cannot be allowed to get in the way of progress.”
Statements such as these raise serious questions about Secretary Yuen’s fitness for the office he holds. But they raise even more disturbing questions about the willingness of those in power in Hong Kong to defend the rule of law, and the Hong Kong public interest, against rule by law and the interests of Beijing.
As Alex Chow, Nathan Law, and Joshua Wong emerged from a Hong Kong courtroom yesterday, they were surrounded by visibly upset supporters, many of them young. The trio had just been sentenced to between six and eight months of prison for “unlawful assembly” and “incitement.”
The image of teary-eyed youth probably pleased mainland Chinese authorities, who had wanted them punished harshly. In vehemently worded essays during and after the 2014 Umbrella Movement—and in stark contrast to the protesters’ peaceful rhetoric—Chinese state media has characterized the protesters as “traitors” and “trouble-makers” who must be “thoroughly eliminated.”
In the three years since, the Beijing and Hong Kong governments have tried to break—and discipline—pro-democracy leaders in Hong Kong, particularly those involved with the Umbrella Movement. Some have been subjected to politically motivated prosecutions and official harassmentsOthers have been followed, intimidated, and assaulted by suspected mainland security police, particularly during Chinese President Xi Jinping’s visit to Hong Kong in July this year.
In face of Beijing’s relentless pressure, the Umbrella Movement trio and others in Hong Kong have adhered to peaceful political activism. They established a new political party, Demosistō, injected new ideas into the debate for Hong Kong’s fight for democracy, supported dissidents and activists in the mainland, and forged alliances with young pro-democracy leaders opposing authoritarianism across Asia.
Many Hong Kongers, accustomed to a flawed but functioning semi-democratic system, are despairing to find their justice system being used for blatant political purposes and their government increasingly mimicking the mainland administration. This government has failed to meet its international legal obligations to amend a domestic law, the Public Order Ordinance, that allows peaceful protesters like the trio to be jailed, or abide by its own functional constitution, the Basic Law, which requires moves towards genuine universal suffrage.
The government has also increasingly allowed Beijing to dictate its domestic political process, to carve out a part of Hong Kong where mainland laws will apply, and to kidnap Hong Kong residents to across the border where they are detained and forcibly disappeared. It is also the same government whose refusal to seriously discuss electoral reform with pro-democracy student leaders that prompted thousands to take to the streets in 2014.
Despite these serious setbacks, the trio—together with their fellow protesters—have helped raise political consciousness in Hong Kong, especially of young people, who are unwilling to give up their basic rights and liberties – and demand much more.
That genie is out of the bottle, and nobody can lock it up.
The Decision has sent a sober reminder that the political crisis associated with the Umbrella Movement is far from over. The Decision is a controversial one and it is controversial because it serves or is perceived to serve multiple functions.
First, it serves a legal function by establishing itself as authoritative guideline case. As the court noted, magistrate courts in Hong Kong have given inconsistent sentencing decisions in a number of unlawful assembly cases. Those cases are often politically charged and the legality and legitimacy of those decisions passionately debated and highly contested. Whether and when a custodial sentence should be imposed is as politically controversial as it is legally contentious. The Decision clarifies the test for community service orders and offers clear and concise guidelines on when a community service order ends and a custodial sentence starts in unlawful assembly cases.
Second, the Decision serves a social function. Consistent with its conservative position on the Umbrella Movement, the court defines the rule of law narrowly as following positive legal rules. Therefore the exercise of one’s individual rights and freedoms, whatever they are, must be kept within the legal perimeters and is conditioned on the full respect of the freedoms and rights of others. For the judges, political motivation matters little if any in determining liability and in imposing sentences. The court has shown little patience with and indeed is openly hostile to the idea that legal rules can be sacrificed for a political agenda, however noble it may be.
In the Decision, the court took notice of the fact that, in Hong Kong’s democratic pursuit, there has been a growth in incivility and disorder in the society at large and a decline of respect for law and order. In particular there is an “evil current” permeating Hong Kong society that advocates open defiance against the rule of law tradition that Hong Kong is proud of. The three respondents at the heart of that evil current showed genuine remorse. The imposition of custodial sentences on them is to enhance the deterrent function of punishment and to restore the respect for law. The court threatens a more severe punishment if sentencing at the current level fails to deliver.
Finally, the Decision is perceived to serve a political function. One may envision a dialogue that the justices are trying to engage in with Beijing. Since the inception of the Umbrella Movement, Beijing has put Hong Kong on notice that it will not tolerate what it perceives as open challenges to the vaguely termed “Chinese sovereignty” and indeed has given express warnings that the survival of One Country, Two Systems depends on Hong Kong’s ability to keep its house in order within the one country framework as China defines it. With Chinas’ rising global influence, the Central Authorities have become increasingly inpatient with Hong Kong’s democratic demands and an emerging secessionist pursuit. They have threatened a more direct rule in Hong Kong. For the Hong Kong elites, Beijing is unlikely to endorse the universal suffrage as Hong Kong has demanded over the past twenty years and in the process Hong Kong may lose what it may have if the fight persists against the clear warning of Beijing. With enemies at gate on one hand and with defiance among Hong Kong youth on the other who are quickly radicalizing, Hong Kong’s elites, including some in the Judiciary, must have perceived an imminent danger of losing Hong Kong’s lifestyle as they know it. To respond to the imminent risk, judges needed to put a stop to the “evil current” and put the Hong Kong house in order to preempt a new round of heavy-handed intrusions that will further undermine Hong Kong autonomy. The young student leaders can be seen as the sacrifice in this bargain. Beijing seems to be satisfied with the offer, but whether Hong Kong as a whole is able to understand and accept the logic is hard to predict. Hong Kong is a polarized society and the Decision is likely to entrench the polarization. This is a high risk game and the judiciary may be putting its credibility at risk given this political dimension.
*Views expressed are his own and do not necessarily represent the views of the Progressive Lawyers Group
Article originally appeared in ChinaFile on 17 August 2017