As he curled his spindly legs around the metal bars, the sight of the bespectacled teenager with his floppy mop of hair valiantly trying to scale the three-metre-high barrier, along with fellow student leader Alex Chow Yong-kang, galvanised others into action.
Another youth leader, Nathan Law Kwun-chung, then on stage at the demonstration, called on the others to join in the storming of the forecourt that they had dubbed “Civic Square”. They wanted to “reclaim” the space that had been the site of previous protests, they declared.
Law scholar urges Hong Kong justice minister to come clean on process that led to jail time for pro-democracy activists
Security moved in and clashes ensued. The scrum was a prelude to the 79-day Occupy protests that began two days later.
Their actions that night might have been consigned to a footnote of history were it not for a twist in a recent court judgment. The court’s decision has stirred emotions, fuelled a fiery debate and stoked the prospect of more protests after last Sunday’s turnout.
At the heart of the controversy is whether the city – with its proud tradition of independent judges – now has to reckon with politics creeping into its courts.
Last week, student activists Wong, then 17, Law, then 21, and Chow, then 24, were slapped with jail sentences of six, seven and eight months respectively by an appeal court, after being spared prison by a lower court last year, for their acts that fateful evening.
The higher sentences sparked a torrent of criticism in the city and abroad that Hong Kong’s independent judiciary was now succumbing to a government-led bid to hand out harsher punishments to its young critics.
It did not help matters that one of the presiding judges, Wally Yeung Chun-kuen, weighed in on the increasingly polarised political scene by proferring what a leading lawyer called “emotional” comments.
“Hong Kong has recently been clouded with an unhealthy trend, in which some individuals carried out unlawful acts as they wish in the name of the ideal and freedom they pursue with power enshrined in the laws,” Yeung wrote in the judgment.
These people, he said, not only refused to admit they were wrong, but even felt a sense of pride. These “arrogant” and “selfish” thoughts, he added, had caused youngsters to breach public order during their demonstrations.
Some legal scholars questioned whether the judges had applied law correctly in deciding on the custodial sentences.
But both the legal community and the government have sprung to the judiciary’s defence, firm in their conviction that the courts acted independently and without bias.
The courts’ only “crime” was that it was caught up in a politically charged event, University of Hong Kong legal scholar Simon Young Ngai-man said.
“This is natural. You see it in other societies,” he said.
A sentencing decision in August last year by a magistrate’s court, the lowest level in the judiciary, was the catalyst for the controversy. Then Eastern Court magistrate June Cheung Tin-ngai found Wong and Chow guilty of unlawful assembly. Law was convicted of inciting others.
Unlawful assembly – an offence taken off the books in Britain in the 1980s – warrants a three-year maximum jail sentence in Hong Kong if tried at a magistrate’s court. But the magistrate gave Wong and Law 80 and 120 hours of community service, respectively, and Chow a suspended sentence, believing a lenient and understanding approach was appropriate.
Justice chief rejects claims of ulterior motive behind sentence review that jailed Hong Kong pro-democracy activists
She said the trio were “innocent” and “impulsive” youth, who genuinely believed their political cause and cared about society. She also accepted their act was a far cry from “extreme violence”, with no direct evidence showing they had caused injuries to the security guards that night.
The only thing they wanted, she said, was to enter “Civic Square” to chant slogans.
But the Department of Justice disagreed. According to the prosecution code, the department can ask the court to review sentences in “exceptional cases”, where the ruling errs on a point of law or principle that is “manifestly inadequate or unjust”.
A sentence review must be signed off by either the justice secretary or the director of public prosecutions, former prosecution head Grenville Cross said.
It is a rare move. Only 100 sentence decisions were reviewed in the past five years from more than 30,000 people arrested each year, a check by the Post found.
The case of the trio was one of those and so prosecutors went back to the magistrate for a stiffer sentence. After Cheung refused, they took the case to the Court of Appeal, which decided last week to jail the trio.
Citing past English cases, Justice of Appeal Jeremy Poon Shiu-chor wrote that when an unlawful assembly involved violence, “the prime consideration for sentence is to punish those offenders, so as to warn others”.
In these cases, the offender’s personal background and whether they had a noble motive and reason were no longer powerful mitigating factors, he said.
A deterrent sentence was needed instead and the offender should also be sentenced not only for his role but also based on the scale and seriousness of the unlawful assembly.
The magistrate had erred because she had failed to consider the need for a deterrent sentence, as well as the risk of violence involved in this large-scale protest, Poon wrote.
The appeal judge also wrote in the ruling – endorsed by Yeung, who is also the appeal court vice-president, and Justice of Appeal Derek Pang Wai-cheong – that the trio should have foreseen clashes between protesters and security and police officers would lead to injuries, despite not taking the initiative to harm others.
But University of Hong Kong law scholar Eric Cheung Tat-ming questioned whether the Court of Appeal had gone beyond its scope.
Under common law, Cheung said, the norm was not for the appellate court to meddle in the factual findings in appeal hearings and “re-cast” the facts. Cheung quoted former Court of Final Appeal judge Henry Litton’s ruling in a case in which he chastised an appeal court judge for “shedding his appellate gown” to take on a fact-finding role.
He said in the present case, the appeal court had made fresh findings different from what the magistrate had arrived at, based on the same evidence. The judges concluded that the protest was violent, contrary to what the magistrate found, he said.
His colleague, associate professor Peter Chau, who specialises in criminal law, also argued the sentences were excessive, as the appeal court had taken reference from past English cases when petrol bombs or rocks were hurled, sometimes targeting law enforcement officers.
Two days before the trio were put behind bars, the same three appeal court judges also jailed 13 other protesters for between eight and 13 months for storming the city’s legislature in 2014 over a controversial government development plan that saw people losing homes.
The sentencing was also at the request of the prosecutors, who said bamboo sticks and metal objects were used to pry open the Legislative Council’s doors on June 13 that year.
The criticism of political interference in the courts after the sentencing review and the jail terms led to a street protest last Sunday, when tens of thousands marched to the Court of Final Appeal building in Central.
Well before that, there had already been murmurings in some quarters that the judiciary was facing heat amid Beijing’s apparent attempt to exercise a tighter grip on the city.
In June 2014, Beijing’s State Council released a “white paper” spelling out how judges should be “administrators” and patriots. Legal professionals showed their displeasure by protesting against the proposals.
In a speech at the London School of Economics months later, the city’s chief justice, Geoffrey Ma Tao-li, acknowledged that the white paper – as well as the Occupy protests – posed challenges to the courts.
“When you have incidents like that, people then start worrying about whether the rule of law exists in Hong Kong,” he told law students.
Last year, eyebrows were again raised when National People’s Congress chairman Zhang Dejiang said during a visit to Hong Kong that the city’s judiciary should strictly enforce laws and ensure the fair administration of justice, and not “make concessions to law-violating behaviour”.
His warning was read as a signal to be firm with protesters, especially those involved in the Occupy demonstrations that paralysed parts of the city for two and a half months.
Concerns surfaced again when Beijing waded into the saga of two lawmakers who had insulted China in their oaths – and issued an “interpretation” that effectively expelled them from the legislature. It marked the fifth time the National People’s Congress Standing Committee had “interpreted” Hong Kong’s mini-constitution since the city returned to China in 1997. Another four pro-democracy lawmakers were later disqualified.
But accusations of bias in the courts have also surfaced from the pro-government side. Earlier this year, when a British-born judge sentenced seven Hong Kong policemen for assault, pro-Beijing supporters attacked the judge for being biased, due to his ethnicity.
After the sentence last week, Joshua Wong’s political party, Demosisto, accused the government of “abusing judicial procedures” to “put peaceful protesters behind bars to mute all dissidents”.
Amnesty International said the cases were a “relentless and vindictive pursuit of student leaders”, smacking of “political payback by the authorities”.
But Chief Executive Carrie Lam Cheng Yuet-ngor hit back at accusations that the judges were politically motivated.
“Our courts are exercising judicial powers independently, free from any interference,” she said.
Secretary for Justice Rimsky Yuen Kwok-keung also denied politics was at play in a commentary published in the Post yesterday, saying public criticism stemmed from a lack of understanding.
“The defendants were convicted and sentenced not because they exercised their right of assembly, demonstration or freedom of speech; but because they had overstepped the line allowed by the law and that they had committed serious unlawful acts,” he said, as he sought to draw a distinction.
The city’s two professional legal bodies, the Bar Association and Law Society – not always known to echo or be supportive of each other or the government – published a rare joint statement, saying the judges ruled solely according to the law, while expressing “great concerns” over press commentaries questioning the city’s judicial independence.
The justice secretary’s role
Meanwhile, a Reuters report suggested that justice secretary Yuen overruled his top prosecutors’ advice to insist on reviewing the protesters’ sentence, fuelling suspicion it was a political act.
Ivan Choy Chi-keung, a politics lecturer at Chinese University, said the lack of trust in the judiciary was a “tragedy” that stemmed from a general suspicion of the government in recent years, causing people to look for targets to blame. The judiciary’s reputation was collateral damage in such a toxic atmosphere.
“The Hong Kong people have a widespread mistrust of the government. It is also a result of the polarisation after the umbrella movement,” he said.
Prominent solicitor Kevin Yam Kin-fung from the Progressive Lawyers Alliance said Beijing’s pressure in the past had not had an effect on the judges, but took a toll on people’s perception of the judiciary. “I feel a bit sorry for the judiciary, they get caught up in all this,” he said.
Chinese University political commentator Ma Ngok said the issue went beyond the courts and involved the secretary for justice.
Hong Kong could help restore people’s confidence by looking to justice departments overseas, which were more transparent, law professor Simon Young said.
In Canada, for instance, the decision to review a sentence had to be gazetted when the attorney general wanted to “assume control” over a public prosecution.
“If there is a proper account of this, it would help to restore people’s confidence,” he said.
Former director of public prosecutions Cross agreed with the appeal court that the case needed to be reviewed, saying “undue leniency could not possibly be justified”.
“There cannot, after all, be one type of sentence for those who commit serious crime for political reasons and another type for those who do so for other reasons, as everyone must be treated as equal before the law, and must face the same consequences for their crimes,” he said.
Yuen has yet to comment on his involvement in reviewing the trio’s sentence.
Is the judiciary still independent?
But perception ought not to be confused with reality, said legal experts who maintained Hong Kong’s judiciary remained independent from outside influences.
During the same speech at the London School of Economics, Chief Justice Ma urged the students not to jump to the conclusion that the rule of law of a place was compromised just by looking at the case result, which sometimes could be politicised.
“People who look at results will say the court decides that way only because the court might be biased towards the government or against the government,” he said.
But instead, he advised the law students they should turn to the actual arguments in the judgments, so they could make up their own minds whether judges had ruled strictly by the book.
Young said in countries such as Pakistan, where the judiciary had become compromised, there were clear signs the government had been meddling in court decision-making processes, including by removing judges.
The latest sentencing controversy was an unfortunate case of the court being caught in the political battles of the city rather than the judiciary being compromised, he said.
Barrister Lawrence Ma Yan-kwok agreed, pointing to the apolitical appointments of judges, the lack of bribery and corruption, security of tenure and how judges could not be dismissed by politicians if they disagreed with a decision.
Academic Ivan Choy said there was no strong evidence to conclude that judges were biased. But he cautioned that the public perception of judges bringing their own political views to the table could end up hurting the courts – rhetoric deployed recently by Carrie Lam.
In his Post commentary, Yuen cautioned that while the public had a right to discuss judicial decisions, discussions should not seek to undermine the integrity or impartiality of the judiciary.
But Young said criticism should be tolerated, noting that if freedom of expression was curtailed, the city might become a “Singapore-style” judiciary, where people were easily prosecuted for contempt of court.
However, he drew the line at criticism of the courts by central government officials as that would hurt rather than help the judiciary.
The Hong Kong government should hold firm on this front to protect the two systems aspect of “one country, two systems”.
Many – even the trio – are unlikely to disagree.
Article originally appeared in South China Morning Post on 25 August 2017