Criminalizing the opposition in Hong Kong
A review of the major prosecutions of pro-democracy leaders and activists and a discussion of their impact on rule or law
The Chinese Communist Party and the Hong Kong government are using the courts to drive their agenda of criminalizing and marginalizing political opposition as part of their wider crackdown on the pro-democracy movement and the mainlandization of Hong Kong.
This article follows up on a January preview of some of the cases and an article started in April 2017 monitoring specifically the cases against pro-democracy leaders. In both, additional information on the cases can be found.
An abridged version of this article can be found here.
This article will not be updated. For the most up-to-date information on cases mentioned here, go to here.
After the Friday, May 11 convictions of Avery Ng in one trial and Baggio Leung, Yau Wai-ching and their three assistants in another, there will most likely be no further verdicts for some time in the remaining trials of Hong Kong pro-democracy activists. Now is a good time to step back and review.
In the period immediately following the 2014 Umbrella Movement, I began to track arrests and prosecutions related to it. From 11 June 2014 to 25 April 2015, 1,505 people were arrested in relation to protests against the attempt by the Chinese Communist Party and Hong Kong government to foist upon Hong Kong a fake universal suffrage proposal. Of those, 668 were arrested during the Umbrella Movement from 28 September to 15 December 2014, 724 were arrested before it, and 113 were arrested after it.
By early 2016, it seemed that the Hong Kong government had nearly come to the end of its Umbrella prosecutions. The Secretary for Justice reported to the Legislative Council, “As at January 31 this year , a total of 216 persons have undergone, are undergoing or will undergo judicial proceedings. Amongst them, 182 persons have gone through the judicial process and 116 of them have to bear legal consequences, including 74 who were convicted and 42 who were bound over upon conclusion of court proceedings.” Over the course of 2016, four more persons were prosecuted and convicted, bringing the total by early 2017 to at least 220 prosecuted and at least 78 convicted, mostly of minor offenses.
All but five of those 78 convicted were given non-custodial sentences. The longest prison sentence for a demonstrator was 10 months, for assaulting a police officer in Admiralty Centre on 1 December 2014. Three people were sentenced to three and a half months in prison each for breaking into Legco on 19 November 2014, and this on government appeal (they were originally sentenced to community service). Ken Tsang, the victim of the infamous “dark corner” police beating broadcast on television, was sentenced to five weeks in prison for assaulting officers and resisting arrest. The total amount of prison time to which demonstrators were sentenced was one year, nine months and three weeks.
Up to that point, the Chinese Communist Party and the Hong Kong government had constantly referred to the “illegal Occupy movement” in their propaganda but were having very limited success proving that illegality in Hong Kong courts. In fact, eight police officers have been sentenced to more prison time for crimes committed while policing the Umbrella Movement than all protesters put together. The seven officers convicted of beating Ken Tsang received two years in prison each, amounting to 14 years total. An eighth officer, Frankly Chu, was sentenced to three months in prison in a separate case. In all, police officers were sentenced to 14 years and three months.
The trial of Joshua Wong, Nathan Law and Alex Chow for occupying Civic Square on 26 September 2014, triggering the start of the Umbrella Movement two days later, was only one of two Umbrella Movement-related trials to begin in 2016. It started in February and concluded in August. It was not the first post-Umbrella prosecution of pro-democracy leaders, but it was the first related to the Umbrella Movement. Still, people didn’t seem too worried because, after all, the offense with which they were charged, unlawful assembly, was non-violent and usually punished by a sentence of community service and/or a fine. Indeed, Wong and Law received community service sentences and the judge accommodated Chow’s desire to study abroad by giving him a suspended prison sentence.
But then the Hong Kong government appealed the sentences, and it began to appear that something new was afoot, especially as in late 2016, the number of prosecutions of pro-democracy leaders started to increase.
The violence between police and protesters in Mong Kok during the Chinese New Year in 2016 appeared to have emboldened the government to aggressively pursue prosecutions in the courts using the blanket argument that protests of all kinds, including nonviolent ones, endangered law and order.
But the prosecutions of pro-democracy leaders were not only related to protests. In September 2016, new and young candidates did impressively well in Legislative Council elections. This development, along with the rise in calls for self-determination and independence, seemed to have alarmed the Party and Hong Kong government, spurring them to take action to snuff out any nascent movements they feared they could not control. They almost immediately initiated disqualification proceedings against six pro-democracy Legco members (five newly elected, one re-elected) and the prosecutions of pro-democracy Legco members and other leaders of political parties and student organizations increased rapidly.
In April 2017, over two years after the end of the movement, charges were brought against the Umbrella Movement 9, essentially for “inciting” the 79-day-long occupations. I began to document a clear pattern of the Hong Kong government targeting leaders of pro-democracy political parties and student organizations for prosecution. Up to now, twenty-six pro-democracy leaders have faced 40 different legal cases since the Umbrella Movement. Most of the prosecutions have started since late 2016.
In January this year, I previewed a series of upcoming trials and have tracked those trials since. It was not only pro-democracy leaders but also ordinary activists who were being prosecuted, the latter in batches of a dozen or more at a time. Numbers were ballooning. In January, there were six trials of 43 defendants; in February, six of 27; in March, eight of 46; in April, five of 27; and in May, three of 21. Since the start of 2018, more than three years after the Umbrella Movement concluded, there have been four movement-related trials of 47 defendants, sending the overall number of those tried to at least 266 and the number convicted to at least 100.
It’s not over yet. There are at least 10 on-going or yet-to-begin trials involving 53 defendants, with big ones scheduled in May (the Mong Kok 15), July (the Liaison Office 9), September (the NENT 13), and November (the Umbrella Movement 9), and there may be new cases to come (for example, Democratic Party Legco member Ted Hui was recently arrested).
What has happened so far and what conclusions can be drawn?
Put simply, Hong Kong has never seen anything like this before, so many people in the pro-democracy movement put on trial over such an extended period of time for such a wide array of crimes. One would have to look to places like Turkey or Venezuela to find comparable instances of prosecutions in courts of law being used as a key weapon in campaigns against political enemies.
In addition to the at least 266 prosecuted in relation to the Umbrella Movement, there have been dozens of others, including at least 27 for protesting, 13 for carrying out their duties as Legislative Council members, and at least 2 for other reasons.
As noted above, the Hong Kong government has brought 40 legal cases against 26 pro-democracy leaders. As of 12 May, 25 cases have concluded, resulting in 16 convictions, six acquittals, one prosecution thrown out by the judge, and six disqualifications from Legco. (Note: The discrepancy has to do with the difference between number of cases and number of counts per case.) Five appeals are on-going, four by defendants, one by the government. There have been three prison sentences. One has been served, and the defendants in the other two cases are on bail pending appeal. Three prison sentences were overturned upon appeal. (See a full table providing an overview of these cases at the bottom of the article.)
Of those 26 pro-democracy leaders, 12 are Legco members, who have faced 18 different cases against them.
There are currently 25 pro-democracy Legco members. Prior to the disqualification of six, there were 29. Of that latter number of 29, over one-third have faced judicial proceedings. And of those 18 cases, 13 relate to actions taken or words spoken by Legco members while carrying out their duties as elected representatives within Legco (as opposed to, say, taking part in street protests or engaging in entirely unrelated activity).
The list of 26 pro-democracy leaders also includes 10 leaders of student organizations and five leaders of political parties who are not Legco members. (The discrepancy in the totals- 12 Legco members + 10 student leaders + 5 political party leaders = 27 versus 26 pro-democracy leaders total is because one, Nathan Law, was previously a leader of Hong Kong Federation of Students before becoming a Legco member.)
Many of those targeted have been young people. In the “batch trials”, the Mong Kok 20, Mong Kok 15, NENT 13, and Liaison Office 9, the vast majority of defendants are young people. The Umbrella Movement 9, with only two young defendants, is the only batch trial that doesn’t fit this pattern. All of these are related to protests.
Two political parties have been singled out for targeting: Demosistō and League of Social Democrats have had, respectively, 10 and 11 leaders and core members on trial.
Individuals targeted for multiple prosecutions include Long Hair (4*), Raphael Wong (4), Avery Ng (3), Joshua Wong (3), Nathan Law (3*), Ivan Lam (2), Derek Lam (2), Baggio Leung (2*), and Yau Wai-ching (2*). (The asterisks denote numbers that include a disqualification from Legco, which is not a criminal prosecution.) All of those individuals except the last two belong to Demosistō or LSD.
The government’s success rate is checkered but looks to be improving. In the early phase of Umbrella Movement trials up to the end of 2015, its record was poor, with convictions in only 74 of 216 prosecutions, or about 34 percent, significantly under the overall conviction rate of about 50 percent for 2014, which itself has been criticized as lamentably poor by law-and-order types. But since the Civic Square 3 case which started in February 2016, its Umbrella Movement record has improved considerably: 23 out of 24 convictions. Its record in other cases has improved as well, with, for example, all 13 of the NENT 13 sentenced to the lengthiest prison terms in living memory for unlawful assembly (their appeal will be heard in September), and 19 successful cases against pro-democracy leaders, resulting in either convictions or disqualifications (versus seven unsuccessful cases).
The prosecutions and the state of the rule of law in Hong Kong
The World Justice Project ranks Hong Kong 16th out of 113 countries in its 2017–2018 Rule of Law Index. In its 2017 report on Hong Kong, the European Union concluded, “The rule of law prevailed and the judiciary continued to demonstrate its independence and consistent respect for due process.” Are these assessments not unjustifiably sanguine?
In its most recent report, the United Kingdom recognizes the situation but refrains from condemning it or assigning responsibility: “The rule of law and independence of the judiciary is the foundation on which Hong Kong’s success and prosperity is [sic] built. This reporting period has seen a large number of cases related to the political system come before Hong Kong’s courts, including the disqualification of a further four legislators. The judiciary in Hong Kong remains in high esteem. It will be vital that the Hong Kong SAR Government is seen to use the system of justice fairly in all cases.”
The threat to rule of law posed by the Communist Party and Hong Kong government should provoke much greater concern, especially if, in addition to what is presented here, 1) the large number of legal cases brought against political opponents, we take into account the larger picture, including such developments as 2) the National People’s Congress Standing Committee’s intervention in an on-going legal case, the disqualification proceedings against Baggio Leung and Yau Wai-ching, to retroactively determine an outcome in its favor; 3) the ceding of Hong Kong land at the express rail terminus to mainland authorities with no legal basis whatsoever and in direct contravention of the Basic Law; 4) the Chinese government’s unilateral insertion into the Basic Law of a new mainland law criminalizing insult of its anthem; 5) the disqualifications of candidates for Legco on political grounds based on entirely arbitrary rulings by administrative officers, coupled with the exceedingly sluggish response of the High Court in addressing election petitions against the practice, 6) the Hong Kong government’s “innovative” employment of never-before-or-rarely-used charges against political opponents, such as the “inciting public nuisance” charges against the Umbrella Movement 9 and the charge of “contempt of Legco” against Long Hair; and 7) the introduction by the High Court of harsher sentencing guidelines for nonviolent protesters convicted of unlawful assembly, which may result in an increase in the number of protesters going to prison in the future and appears to hold nonviolent protesters accountable for any violence which may occur at protests where they are present even if they are not responsible for the violence.
All of these developments have occurred within the last year and a half. There has been a steady barrage of bad news about rule of law in Hong Kong. Overall, the Party and Hong Kong government are trying to bend the law in a more authoritarian direction and have had some success in persuading the courts to go along with them. This is toxic not only to the rule of law but also to politics and society’s sense of fairness and decency.
In light of this grim picture, what do such observers as those mentioned above mean when they say rule of law remains robust in Hong Kong? To a large extent, as the EU acknowledges, they mean the city remains “good for business”: “The rule of law, a transparent regulatory framework, very low levels of corruption and crime, along with an efficient public administration and an independent judiciary, contributed to preserving and fostering the favourable investment climate that lies at the heart of Hong Kong’s success.”
It is true that in non-political areas, rule of law continues to function well and due process is widely respected. The judiciary remains generally quite independent, notwithstanding the influence on it, especially at the High Court, by the constant pressure of propaganda, the Party’s interventions, and non-stop prosecutions.
But an assessment that rule of law in Hong Kong is just fine fails to take seriously the prospects when a government begins to employ the courts toward political ends or, in some cases, acts outside of the law (the continued denial of universal suffrage, the ceding of Hong Kong territory to the mainland) and refuses to be held accountable. Surely, this is a sign of a deterioration in respect for rule of law, the beginning of its undermining, and a drift toward Communist-style “rule by law”, made all the more troubling by the fact that the Hong Kong government, like the Party, constantly invokes “rule of law” to defend its actions.
Indeed, this ritual justification, “acting in accordance with the rule of law”, appears to have a hypnotic effect on a great many observers, bamboozling them into complacency or somnolence: Oh, well, if it’s done in accordance with rule of law — and Hong Kong does have robust rule of law, lest we forget — then, well, even if we don’t like it, that’s just the way it is. Likewise, the steady drip-drip-drip of one prosecution after another is intended to fly under the radar. To understand the full breadth of the crackdown on the pro-democracy and the mainlandization of Hong Kong, and therefore, also the threat to the rule of law, one must comprehend the full picture.
Far from being only “fringe” issues, using the legal system to attack political opponents and the multiple infringements on the “one country, two systems” principle are the canaries in the coalmine, and based on those criteria, alarm bells should be sounding loudly.
The prosecutions are just one part of a wider crackdown on the pro-democracy movement and a strategy to mainlandize politics. Besides that mentioned above — barring candidates for Legco — , other means include denial of applications of pro-democracy groups to register under the Companies Ordinance, thus denying them legal status; denial of use of public space to groups which the government has singled out as political enemies; pressuring universities to rein in professors and students; and unsubstantiated declarations that certain speech is “against the Basic Law” as justification for attacks on perceived enemies (most recently, Benny Tai). In all of these cases, the government has invoked both rule of law and the Basic Law to justify its actions, but a clear pattern emerges of the Hong Kong government employing law as a means to attack its political enemies.
While the Chinese Communist Party and Hong Kong government continue to deny to the people of Hong Kong basic human rights, such as the right of self-determination and the right to genuine universal suffrage, they are further restricting other basic rights such as freedoms of expression and of assembly, the right to run in elections and to hold elected public office, and the right to vote in free and fair elections.
The overall objectives of the Party and Hong Kong government in their on-going crackdown on the pro-democracy movement include 1) keeping it on the defensive, thus weakening its abilities to resist and advance a positive agenda, 2) damaging or destroying certain groups within the movement which they regard as fundamentally “unpatriotic”, “disloyal”, “seditious” or “illegal”, 3) intimidating ordinary Hong Kong people against participating in any oppositional or resistance politics, and 4) ultimately creating a political environment in Hong Kong that more closely resembles that of the mainland.
A review of the major legal cases against pro-democracy leaders and activists over the past year
The following review is not exhaustive and focuses primarily on cases of the past year or so.
In addition to the cases against pro-democracy leaders and activists discussed in this article, there have also been major trials of other political opponents, in particular of dozens for their involvement in clashes between police and protesters during Chinese New Year 2016 in Mong Kok.
The DQ 6
defendants: Baggio Leung, Yau Wai-ching, Leung Kwok-hung / Long Hair, Lau Siu-lai, Nathan Law, Edward Yiu
charges: failure to meet oath-taking requirements to assume seats in the Legislative Council (non-criminal case)
outcomes: All six were disqualified, Leung and Yau on 15 November 2016, the other four on 14 July 2017. Leung and Yau appealed first to the Court of Appeal and then to the Court of Final Appeal. Both courts rejected their appeals. Of the other four, Nathan Law and Edward Yiu decided not to appeal while Long Hair and Lau have appealed. Long Hair and Lau’s appeals have been scheduled for April 2019 but they are appealing this date set so far in the future. By-elections to fill the four other seats were held in March 2018.
The cases were actually tried in two batches, Baggio Leung and Yau Wai-ching first, the other four following. They are grouped together here due to their similarity; namely, the government brought cases against the six recently elected pro-democracy Legislative Council members and the High Court disqualified them, leaving their seats in Legco vacant.
The government’s case was that, during oath-taking, all had acted in ways that constituted failure to take the oath of office and that they thereby lost the right to fill their seats, even though they were elected.
Meanwhile, the government which brought the case against them remains unelected. The juxtaposition brings into relief a clear instance of the law failing to deliver justice.
These cases were precedent-setting in three respects.
First, the government had never previously attempted to use the courts to get elected Legco members disqualified. Previously, any and all acts committed in Legco had been dealt with by Legco. A kind of tradition had developed of pro-democracy Legco members using their oath of office to protest. In several cases, the Legco secretary had declared these oaths void. The Legco members were then given the chance to retake their oaths. In these cases as well, the pro-Communist Legco president had ruled the six could retake their oaths, but then changed course in the cases of Leung and Yau once the government brought the legal cases against them. These cases thus set the precedent that both the executive and judicial branches can intervene in Legco and overturn decisions made by Legco. In this respect, they are similar to the seven prosecutions brought by the Hong Kong government against pro-democracy Legco members for speech and actions in the course of carrying out their duties as Legco members. Such matters were previously dealt with solely by Legco disciplinary committees.
Second, while the first case, against Leung and Yau, was on-going, the National People’s Congress Standing Committee issued an “interpretation” of the Basic Law article regarding oath-taking. The purpose of the interpretation was to give the High Court no other recourse but to disqualify the six. Furthermore, since it was an “interpretation” rather than an amendment, it was to be applied retroactively. It was one of the few cases of the NPCSC intervening in Hong Kong court proceedings since the 1997 handover, and the only intervention while a case was on-going. Thus, it is the most egregious example thusfar of Party interference in Hong Kong courts and constitutes a major infringement on the principle of “one country, two systems”. In his rulings (it was the same judge in both cases), the High Court judge went out of his way to insist he would have come to the same decision regardless of the NPCSC interpretation, but this is hypothetical, and it is clear that the interpretation brought intense pressure on the High Court, not only in these particular cases but more generally. It is perhaps no surprise that the High Court has ruled more harshly than lower courts in some cases involving pro-democracy protesters (such as imprisoning the Civic Square 3 and the NENT 13, overruling magistrates who’d sentenced the defendants to community service).
Third, the High Court judge entirely disregarded the popular will. Five of the six disqualified Legco members had been elected in so-called geographical constituencies, the sixth in the Architectural, Surveying, Planning and Landscape functional constituency. In all, over 180,000 people voted for the six. Their votes were effectively cancelled out by the judge’s ruling that the ways the six took their oaths of office disqualified them from assuming office.
Elections in geographical constituencies are the only ones in Hong Kong that can be considered free and fair and held in accordance with the principles of genuine universal suffrage. The rulings damaged faith in the courts to provide at least a modicum of justice as well as faith in the integrity of these elections. In 2014, the Umbrella Movement demanded the right to freely elect Hong Kong’s government. Not only did the Party and Hong Kong government reject that demand but since they have actively attempted to determine the few free and fair elections Hong Kong has, in the process so constraining the rights to run for office, to be elected, to hold elected office and to vote as to compromise these elections.
In March, four by-elections were held to fill vacant seats. In the run-up to the by-elections, the candidate seeking to replace Nathan Law, his Demosistō party fellow Agnes Chow, was disqualified on the grounds that her party advocated self-determination for Hong Kong, which the Returning Officer of the Electoral Affairs Commission, following guidance from the Hong Kong government, said was not in accordance with the Basic Law; this, in spite of the fact that has never been determined in the courts and Nathan Law was allowed to run for office in the September 2016 Legco elections. The case shows the Party and Hong Kong government continually and arbitrarily moving the goalposts, always in an ever-more authoritarian direction.
Two seats have still not been filled because the disqualified Legco members are appealing the High Court ruling, but the High Court has not scheduled their appeal until April 2019, two and a half years after they were disqualified.
The Civic Square 3
defendants: Joshua Wong, Nathan Law, Alex Chow
charges: unlawful assembly (Wong and Chow), inciting unlawful assembly (Wong and Law)
outcome: Wong was convicted of unlawful assembly and acquitted of inciting unlawful assembly. Law and Chow were convicted of the charges against them. The magistrate sentenced Wong and Law to, respectively, 80 and 120 hours of community service and, upon his request, Chow to a suspended three-week prison term so that he could complete his studies abroad. The government appealed the sentences. The Court of Appeal sentenced Law to eight months in prison, Wong to seven and Chow to six and imposed stricter sentencing guidelines for future cases similar in nature. The Court of Final Appeal overturned the prison sentences but upheld the stricter sentencing guidelines.
The three were arrested in relation to the occupation of Civic Square on 26 September 2014, which lead to the start of the Umbrella Movement two days later. The three were leaders of the movement.
Chow’s prosecution is peculiar and appears highly selective. Law was prosecuted for calling on people to enter the closed square on the evening of 26 September. Wong was arrested moments after entering the square. Chow was among a little over 60 demonstrators who occupied the square for the whole night and into the next morning, when they were all removed and arrested by police, but he is the only occupier amongst those 60-plus to have been prosecuted, though his actions were no different from those of the others.
The prosecution began in February 2016. On August 15, 2016, the three were convicted. On August 17, 2017, the Court of Appeal sentenced them to prison. On February 6, 2018, the Court of Final Appeal overturned the prison sentences but ruled that harsh new sentencing guidelines imposed by the Court of Appeal were justified. It said the magistrate who originally handed down the community service / suspended sentences had correctly followed the existing sentencing guidelines, and the new sentencing guidelines imposed by the CA could not be applied retroactively.
While the three were set free and the case was finally concluded nearly three and a half years after the incident in question and two years after the trial began, the ruling was ominous insofar as it endorsed harsher prison sentences in the future for convictions on nonviolent unlawful assembly charges at assemblies where “violence” or “disorder” existed, apparently regardless of whether or not the violence or disorder were committed by the defendants.
Law became the youngest ever candidate elected to Legco in September 2016. He was one of four pro-democracy Legco members disqualified in July 2017. Wong is on bail while appealing his three-month prison sentence for contempt of court in relation to the 26 November 2014 police clearance of the Mong Kok occupation during the Umbrella Movement. Both were previously acquitted of obstructing police at a June 2014 protest.
The Hong Kong government was widely criticized for aggressively pursuing its appeal of the original sentencing. The Court of Appeal was also criticized for changing the sentencing guidelines and applying them retroactively.
Both courts repeatedly referred to the issue of unlawful assembly where some violence may occur and this was a major reason for issuing harsher sentencing guidelines. These repeated allusions ignored the facts that 1) the protesters committed no violence in occupying Civic Square (only one protester was charged with a violent offense and he was acquitted), 2) none of the defendants was implicated in any violence but it appears the judges wished to somehow hold them accountable for violence, and 3) the crime of unlawful assembly is a non-violent crime and by issuing harsher sentencing guidelines, the judges are blurring its boundaries, essentially making those convicted of unlawful assembly potential accountable for something they did not do.
In addition, the defendants are victims of double jeopardy, having fully served their community service sentences (in the cases of Wong and Law) and then having served time in prison until they were bailed while awaiting appeal. Neither the courts nor the Hong Kong government have raised the issue of any kind of reparations for this egregious breach of rights.
For all of these reasons, this case sets a bad precedent that reflects poorly on judicial institutions in Hong Kong. It could lead not only to prison sentences for nonviolent offenders where previously those committing such offenses were fined and/or given suspended sentences, and thus has clearly negative implications for the right of freedom of assembly.
The NENT 13
defendants: Raphael Wong Ho-ming, Willis Ho Kit-man, Billy Chiu Hin-chung, Chan Pak-san, Chow Koot-yin, David Chu Wai-chung, Yim Man-wah, Ivan Lam Long-yin, Lau Kwok-leung, Kwok Yiu-cheung, Leung Wing-lai, Leung Hiu-yeung, Wong Kan-yuen
charges: unlawful assembly and attempted forcible entry; one, Leung Hiu-yeung of obstructing a police officer
outcome: All were acquitted of attempted forcible entry but found guilty of unlawful assembly and originally sentenced to community service. Leung Hiu-yeung was found guilty of obstructing a police officer. Upon government appeal of the sentences, the High Court sentenced 12 to 13 months in prison and 1 to eight months in prison. The Court of Final Appeal has agreed to hear their appeal, but not until 7 September. All are out on bail pending appeal, but some served up to six months in prison before being bailed.
This was one of the first big post-Umbrella cases. It is only one of two related to an incident that occurred before the Umbrella Movement. (In the other, Joshua Wong, Nathan Law, Raphael Wong and Albert Chan were acquitted of obstructing police officers in relation to a protest outside of the Liaison Office in June 2014.) In June 2014, protesters demonstrated in Civic Square, outside of the Legco building, against the government’s Northeast New Territories development plan. They were acting in solidarity with villagers who would be forcibly displaced if the plan were implemented. They barged into the lobby of Legco and were arrested and tried for unlawful assembly as well as attempted forcible entry.
In December 2015, they were all convicted of unlawful assembly but acquitted of attempted forcible entry and sentenced a month later to community service . So far, so normal. Prior to the Umbrella Movement, community service and/or a suspended prison sentence and/or a fine were the standard sentences for those convicted of this nonviolent offense.
But the government successfully appealed the sentences at the High Court, which sentenced 12 of the demonstrators to 13 months in prison, and one to eight months. The 13-month sentences were by far the harshest ever handed down by a Hong Kong court for the nonviolent offense of unlawful assembly. The High Court said that the magistrate erred in not taking into account the violence at the protest and said the activists did not act in the spirit of civil disobedience. But this was a disturbing precedent since the crime for which they were convicted, unlawful assembly, is a non-violent crime. They were acquitted of attempted forcible entry, which arguably suggests a degree of violence. Therefore, it appears they were being sentenced based on actions they themselves were never convicted of having committed.
The 13 were imprisoned two days before the Civic Square 3 (see above) in August 2017, and their cases have several similarities: They were all convicted of unlawful assembly related to Civic Square protests, were all originally given community service/suspended prison sentences, and were convicted by the High Court upon appeal by the Hong Kong government. The cases indicate that the High Court appears to take a different view of the crime of unlawful assembly from that previously held by the Hong Kong judiciary. The Court of Final Appeal upholding the new sentencing guidelines imposed by the Court of Appeal in the Civic Square 3 may lead to harsher sentences in future.
In response to the 16 imprisonments, many began to speak of a new era of political prisoners in Hong Kong, and at the end of April, 100,000 marched in protest against them, the largest protest since the Umbrella Movement.
It is unclear why their appeals at the Court of Final Appeal have been scheduled so far into the future, in September 2018, especially given that the appeals of the Civic Square 3 were heard quite expeditiously, in January 2018. Some have speculated that political decision-making was involved: The Civic Square 3, along with the Umbrella Movement, were nominated for the Nobel Peace Prize, and the government feared if they were in prison, or even on bail awaiting appeal, it might increase their chances of being perceived by the Norwegian Nobel Committee to be persecuted for their political beliefs. One would expect a similar CFA ruling on the NENT 13, given that their case is similar to that of the Civic Square 3, right down to the retroactive imprisonment using new sentencing guidelines which did not exist at the time of the incident nor at the time of the original trial and sentence.
The Mong Kok 20
defendants: Joshua Wong, Lester Shum, Raphael Wong, Chau Wan-ying, Chu Wai-lun, Chu Pui-yan, Kwok Yeung-yuk, Chiu Chi-sum, Chan Po-ying, Cheung Kai-hong, Kwan Siu-wang, Hung Cheuk-lun, Fung Kai-hei, Choi Tat-shing, Jason Szeto Tse-long, Mak Ying-sheung, Cheung Kai-yin, Ma Po-kwan, Wong Lai-wan, Yeung Ho-wah.
charges: contempt of court
outcome: All 20 were found liable on 17 January 17 2018. 9 had plead liable, 11 had plead not liable. 17 were fined between HK$10,000 and HK$15,000 and given suspended prison sentences between four and six weeks. 1 was not fined. Joshua Wong was sentenced to 3 months in prison, Raphael Wong to 4 months and 15 days. On March 23, the Court of Appeal rejected Raphael Wong’s appeal and sent him back to prison to serve out his sentence. On April 16, he was released after having completed his sentence (with an automatic time reduction). Joshua Wong was granted bail pending appeal and is currently awaiting a court date.
On 25 and 26 November 2014, the police cleared the Mong Kok occupation, one of the three main occupied areas of Hong Kong during the Umbrella Movement. The police clearance on the 26th was of the main part, on Nathan Road. Of the 20 prosecuted in this trial, three movement leaders, Joshua Wong, Raphael Wong and Lester Shum were dragged from the crowd at the start of the clearance. Joshua and Raphael had been using a megaphone to ask bailiffs questions about the clearance. The other 17 simply happened to be there. The High Court judges ruled that simply being present at the clearance constituted contempt of court since bailiffs and police, invoking a court injunction, had instructed people to vacate the area. I along with hundreds of others happened to be present that day. We were not arrested but allowed by police to leave the area under injunction. In that light, these prosecutions appear highly random and arbitrary. Here is a full account of the Mong Kok clearance, excerpted from my book, Umbrella: A Political Tale from Hong Kong. In terms of number of defendants, this is the largest single trial related to the Umbrella Movement. It was also the first time anyone in Hong Kong had been tried and imprisoned for contempt of court, not a statutory crime, in relation to street protest.
The Mong Kok 15
defendants: Chan Wai-fung, Chu Sui-ying, Wong Ka-yee, Kong Kam-to, Chan Ao-tien, Chan Wing-wah, Leung Hon-lam, Siew Yun-long, Man For-on, Lai Yu-sing, Law Wai-yan, Jeffrey Chan, Yung Yiu-sing, Chan Pak-tao
charges: contempt of court
outcome: Trial proper scheduled to begin on May 15
This is the second big batch of defendants to be prosecuted in relation to the police clearance of the Mong Kok occupation on 26 November 2014 during the Umbrella Movement. While The Mong Kok 20 included movement leaders, this batch is made up entirely or ordinary people who simply happened to be present at the clearance. The group should really be called the “Mong Kok 17” but for the fact that two, Alvin Cheng and Au Yuk-Kwan, plead guilty and were sentenced on March 30, 2017 to, respectively, three months in prison and a suspended 12-month prison term and HK$10,000 fine. The judge gave Cheng a prison term because he “did not show remorse because he was late for a previous hearing and was ‘playing on his phone’ during the trial”. Seven of the remaining 15 defendants have announced their intention to plead liable: Chan Wai-fung, Chu Sui-ying, Wong Ka-yee, Kong Kam-to, Chan Ao-tien, Chan Wing-wah and Leung Hon-lam. Seven others have said they will plead not liable: Siew Yun-long, Lai Yu-sing, Law Wai-yan, Jeffrey Chan, Yung Yiu-sing, and Chan Pak-tao. An arrest warrant was issued for Man For-on who did not appear at pre-trial review hearings.
“Contempt of court” is not a criminal offense under the Hong Kong Crimes Ordinance. The charging of the 37 defendants in the two above trials was unprecedented. The judge in the trial of the Mong Kok 20 expressed uncertainty as to how to determine sentencing. Given the trials’ unprecedented nature, the bar for contempt was set far too low: The judges essentially defined being present as adequate grounds for contempt. Surely, active interference or obstruction in the clearance would have been more appropriate grounds, in which case none of the defendants would have been found guilty. Joshua Wong and Raphael Wong are the only two who the judge regarded as potentially obstructive, though all they did was ask reasonable questions of bailiffs and police about the legal grounds of the clearance. Surely as long as they do not interfere or obstruct, citizens must have the legal right to observe police actions taken in public. The police ended up clearing several blocks of occupied road within an hour, a sign that they faced no impediments from citizens.
All of the above cases (the Civic Square 3, the NENT 13, the Mong Kok 20 and the Mong Kok 15) are being tried in the High Court, which appears to have a much less sympathetic view of citizens protesting nonviolently than the magistrates’ courts.
The Umbrella Movement 9
defendants: Chu Yiu-ming, Chan Kin-man, Benny Tai, Lee Wing-tat, Shiu Ka-chun, Tanya Chan, Raphael Wong, Tommy Cheung and Eason Chung
charges: conspiracy to create a public nuisance (Chu, Chan Kin-man, Tai); incitement to public nuisance (all nine) ; incitement to incite public nuisance (all except Lee)
outcome: Trial proper scheduled to begin November 9
This case is basically intended to place legal blame on these nine for starting the Umbrella Movement on 28 September 2014, an utterly ridiculous notion to anyone who saw how it actually unfolded. The trial proper is scheduled to begin more than four years after the start of the movement. The government only brought charges in April 2017. It has resorted to “inciting public nuisance” charges rarely used in Hong Kong.
Five of the defendants are from Occupy Central with Love and Peace and Hong Kong Federation of Students, two of the leading groups of the Umbrella Movement, but strikingly, what both groups have in common is that on the night of 28 September 2014, rather than “incite”, they actually called on demonstrators to leave and go home, fearing that the police would escalate from teargas to the use of live ammunition. Of the other four, three, Lee Wing-tat, Raphael Wong and Shiu Ka-chun, appear to have played exceedingly negligible roles, while Tanya Chan repeatedly beseeched demonstrators to be calm, rational and peaceful and avoid taking impulsive actions which they might later regret — pretty much the opposite of “incitement”.
The Umbrella Movement was started by the people, without a leader. It would be hard to find a single demonstrator who could report having participated due to having been “incited” to do so by any of the nine defendants. Ironically, the main “incitement” was the eight-hour-long teargas attack by Hong Kong police on Hong Kong citizens, to which people responded with spontaneous nonviolent outrage, filling the streets. But no member of either the Hong Kong government or police is on trial for that; indeed, no credible account of the decision-making behind it has been offered by police or government, no officially sanctioned investigation into it has ever been conducted, and no one has been held accountable.
In a sense, with this case, the Hong Kong government is indirectly putting the people of Hong Kong on trial for “public nuisance”, since we are the “public nuisance” that these nine allegedly incited. Also striking is that of the approximately 1,000 people arrested and 250 prosecuted in relation to the Umbrella Movement, not a single one has been arrested or prosecuted for “public nuisance”. So the Hong Kong government is prosecuting these nine for inciting an offense which it has not legally demonstrated was committed in even a single case.
Two of the defendants, Tanya Chan and Shiu Ka-chun, are current Legco members. Those convicted of crimes punishable by more than three months in prison are ineligible to run for Legco or serve as Legco members, so the retention of the seats of Chan and Shiu potentially hinges on the outcome of this case. Raphael Wong is currently on bail pending appeal of his 13-month sentence for unlawful assembly in connection with a June 2014 protest at Legco and has served a prison sentence of four months and 15 days in relation to the 26 November 2014 police clearance of the Mong Kok occupation during the Umbrella Movement.
This case is also significant because it represents the first time the government is attempting to “stretch” the law in a court below the High Court, in this case, at District Court. The charges all nine are up on, variations on “public nuisance” are not statutory, meaning they do not exist in the Crimes Ordinance but only in common law. No one in living memory has been charged with “public nuisance”. The only apparent reason the government is doing so now is that it comes with heavier maximum sentences than similar charges, such as the familiar “unlawful assembly”. Finally, it is significant that the judge in the case denied the defense request to throw out the charge of “inciting to incite to public nuisance” on the grounds that it is essentially a duplication of the “inciting to public nuisance” charge. That could be a sign that the judge is willing to entertain the government’s attempts to “stretch” legal definitions and applications of existing law.
The Liaison Office 9
defendants: Dickson Chau Ka-faat, Avery Ng, Devon Cheng Pui-lun, Derek Lam, Ivan Lam, Chau Man-wai, Sammy Ip, Lo Tak-cheong
charges: Chau Ka-faat: obstructing and assaulting police officer; Ng: two counts of inciting unlawful assembly; Cheng: unlawful assembly; Derek Lam: inciting unlawful assembly; Ivan Lam: unlawful assembly; Chau Man-wai: two counts of unlawful assembly; Ip: unlawful assembly, obstructing a police officer; Lo: unlawful assembly
outcome: Trial proper scheduled to begin 9 July; delays caused by prosecution changing charges against two defendants
These nine are on trial for various offenses related to a protest outside of the Central Government Liaison Office on 6 November 2016 against an impending interpretation by the National People’s Congress Standing Committee of the Basic Law on oath-taking. The interpretation eventually lead to the disqualification of six elected pro-democracy Legco members.
As much as anything else, the nine are being prosecuted due to the location of the protest, the Liaison Office, regarded by the Hong Kong police and government as a highly sensitive area. Police are under strict orders to prevent any kind of disturbance from occurring there, tightly controlling passage in front of the building, supposedly in the name of the security but it appears that another objective is to discourage people from protesting there.
On the night in question, the police were up to their old antics, preventing demonstrators from passing in front of the building, but on this occasion, the crowd was so large that it began to spill out into the street. Terrible crowd management by police was exacerbated by its overreaction. It arrested Avery Ng, but the protest escalated, and for hours, several thousand protesters filled the surrounding streets, blocking traffic for hours. By the middle of the night, police were able to disperse protesters.
Avery Ng is the only defendant arrested at the protest. The other eight were arrested at their homes two months later. The unlawful assembly charges are particularly peculiar since there were thousands of demonstrators, all presumably “unlawfully assembled” — so why these five, and why did it take months to arrest them?
Two of the defendants are on trial in other cases as well. Ivan Lam was sentenced to 13 months in prison for unlawful assembly at the NENT protest and is out on bail pending appeal. Avery Ng is appealing an assault conviction and was recently convicted of three counts of disclosing the identity of a person under investigation by the Independent Commission Against Corruption. Most of the defendants are members of Demosistō or League of Social Democrats. One, Devon Cheng, is a former student leader.
My full account of the protest.
The Legco 5
defendants: Sixtus Baggio Leung Chung-hang, Yau Wai-ching, Yeung Lai-hong, Chung Suet-ying, Cheung Tsz-lung
charges: unlawful assembly, with an alternative charge of forcible entry
outcome: All five were convicted; sentencing at a yet-to-be-determined date
The charges relate to an incident in the Legislative Council on 2 November 2016. Leung and Yau were newly-elected Legco members at the time. They attempted, with the help of their assistants, to enter a Legco chamber where the rest of Legco was meeting. The President of Legco had barred them from the chamber after having refused to allow them to retake their oaths of office. Prior to that, the President had granted them a retake but then rescinded the promise after the Hong Kong government intervened, announcing it would take the two to court to strip them of their seats. Security guards, on orders of the Legco President, prevented Leung and Yau from entering the chamber where the rest of Legco was meeting.
Days later, in the midst of the government court case against the two over the taking of their oaths, the National People’s Congress Standing Committee issued an interpretation of the Hong Kong Basic Law on oath-taking that effectively compelled the High Court to disqualify Leung and Yau from Legco, which it subsequently did. Their seats remained vacant for 14 months and were filled in a by-election on 11 March.
Legco has also demanded of Leung and Yau reimbursement of over HK$933,000 paid out to them while they were Legco members (on the grounds that, according to the High Court ruling, they never were) and is now suing them to recover the money, which they claim was spent on legitimate expenses while they were Legco members.
The Liaison Office 4
defendants: Albert Chan, Nathan Law, Joshua Wong, Albert Chan
charges: obstructing police
outcome: All were acquitted
The charges related to an incident outside of the Central Government Liaison Office on 11 June 2014. A small protest was held in which a facsimile of the White Paper on Hong Kong, a document recently released by the Chinese government, was burned. Police attempted to first prevent the burning and then extinguish the flames. The prosecution claimed that the defendants attempted to obstruct the police from doing so.
This was the first high-profile trial of pro-democracy leaders after the Umbrella Movement, though it was in relation to a small protest which preceded the movement by more than three months. The four were arrested 13 months after the incident, and after the Umbrella Movement, provoking suspicion that the prosecution was politically motivated.
Nathan Law, Joshua Wong, and Raphael Wong would all eventually be tried and convicted in other cases, the Civic Square 3 (Nathan and Joshua), the Mong Kok 20 (Joshua and Raphael), and the NENT 13 (Raphael). The Civic Square 3 prison sentences were overturned. Joshua was sentenced to 3 months in prison in the Mong Kok 20 trial and is on bail awaiting his appeal. Raphael was sentenced to 4 months and 15 days in prison in that trial and served his sentence after his appeal was rejected. He was sentenced to 13 months in prison in the NENT trial and is on bail awaiting appeal.
The HKU 2
defendants: Billy Fung Jing-en, Colman Li Fung-kai
charges: Fung: disorderly conduct, criminal intimidation, criminal damage, attempted forcible entry; Li: obstructing an ambulanceman
outcome: Fung plead guilty to criminal damage and attempted forcible entry and was found guilty of disorderly conduct. He was acquitted of criminal intimidation. He was sentenced to 240 hours of community service. Li was found guilty of obstructing an ambulanceman. He was also sentenced to 240 hours of community service. While the government appeared disappointed they did not receive prison sentences, it said it would not appeal the sentencing.
The charges were brought in relation to a demonstration outside an on-campus meeting of the University of Hong Kong governing council on 26 January 2016. At the time, Fung was the HKU student union president and Li its external vice-president. The hundreds of protesters were demanding that the council reform HKU’s governance structures. This came in the wake of several attempts by the Hong Kong government to punish pro-democracy academics and to impose its will upon the university, for example by appointing a deeply unpopular council chair who had leveled scathing criticism against student participants in the Umbrella Movement. For several hours, council members did not leave the meeting room, claiming they were under siege and prevented from doing so by the protesting students. University authorities called police onto campus. Eventually, Fung and Li were the two students charged in relation to the incident. Their convictions are precedent-setting: the first time students have been found guilty of a crime in relation to on-campus political activity.
charges: desecrating the flags of the HKSAR and PRC.
outcome: convicted on 29 September 2017 and fined HK$5,000; facing censure by a Legco controlled by Communist Party allies
The charges were brought in relation to an incident which occurred in the Legco chamber on 16 October 2016. Pro-Communist Party Legco members staged a walkout in an attempt to prevent the Legco President from administering the oath of office a second time to recently elected Baggio Leung and Yau Wai-ching, after the two were deemed to have failed to complete their oaths successfully the first time. (The Chinese and Hong Kong governments would eventually intervene and get both disqualified from Legco by the High Court.) The pro-Party Legco members had put mini-flags on their desks to show their “patriotism” as a form of protest against Leung and Yau, who had held banners reading “Hong Kong is not China” while they took their oaths the first time. Cheng turned the flags upside-down, apparently as a kind of prank, which the powers that be did not find amusing in the least. Cheng is the only sitting Legco member to have been convicted but not (yet) kicked out of Legco.
Long Hair / Leung Kwok-hung
charges: In three separate trials, 1) misconduct in public office, 2) contempt of the Legislative Council, 3) assault
outcomes: 1) acquitted of misconduct in public office on 31 July 2017; 2) judge threw out prosecution on charges of contempt of Legco on grounds that a Legco member cannot be prosecuted for this offense; the government is appealing; 3) trial proper yet to begin
The government has decided to try to get rid of this perennial thorn in its side once and for all. It has, in all, brought four cases against him, the three criminal prosecutions listed above plus his disqualification from Legco. He vies with fellow League of Social Democrats party member Raphael Wong for the title of pro-democracy leader facing the most court cases — both have four. But of all pro-democracy leaders, Long Hair’s also been the most successful so far in defending himself. He lost the disqualification case but was acquitted of one charge and had another prosecution thrown out. It was only after that that the government decided to charge him with assault — it appears it will just keep trying until it nails him.
The misconduct in public office charge stemmed from his alleged failure to declare a HK$250,000 donation from Jimmy Lai, the pro-democracy media mogul. A Legco dominated by pro-Communist Party members had already investigated him for the same alleged offense and exonerated him. The underlying issue is that Hong Kong has no law on political parties. Most political parties are registered as companies and are therefore legally required to report revenues but not funding sources. This case hinged on whether Long Hair had accepted the money on behalf of his party, LSD, in which case he did not need to report it, or on his own behalf, in which case, as an elected official, he did. Rather than address the underlying problem, the lack of transparency of political parties, the government decided to try to use a gap in the law to get Long Hair. Meanwhile, we have no idea where by far the wealthiest party in terms of revenue, the pro-Communist DAB, gets its money from.
On 5 March 2018, a judge ruled that Long Hair could not be prosecuted on contempt of Legco charges since he was a sitting member of Legco and the law did not apply to Legco members but to others who disrupted Legco. The government has announced it will appeal the ruling. The case stems from an incident in November 2016 in a Legco meeting. Long Hair snatched a file of papers from the desk of a government official. This is the sort of incident which, previous to the Umbrella Movement, would have been entirely disregarded or dealt with through disciplinary proceedings within Legco. It represents the intrusion of the government into areas which traditionally had been the purview of Legco and the criminalization of the behavior of elected representatives while carrying out their duties.
A month after that case was thrown out, on 4 April 2018, Long Hair was arrested and charged with assault related to an incident on 12 April 2017 outside of Legco. Long Hair is alleged to have kicked a pro-Communist Party protester who, he claims, was attacking elderly people. The case has yet to go to trial.
charges: 1) assaulting police officer, 2) disclosing identity of a person under investigation by the Independent Commission Against Corruption, 3) inciting unlawful assembly
outcomes: 1) found guilty of assaulting an officer and sentenced to three weeks in prison; on bail pending appeal in October 2018; 2) on 11 May, found guilty on all three counts of disclosing identity of a person under ICAC investigation, sentencing at a yet-to-be-determined date; 3) trial proper of the Liaison Office to begin 15 May
Avery Ng is right behind his League of Social Democrats party fellows Long Hair and Raphael Wong, with three cases against him (they both have four).
In October 2017, he was convicted of assaulting a police officer and sentenced to three weeks in prison. On Legco election day in September 2016, he went to the polling station where the at-the-time Chief Executive Leung Chun-ying voted. Outside, he threw a tuna sandwich at Leung. It missed and instead, allegedly, hit a police officer. In Hong Kong, this case is derisively referred to as the “tuna fish sandwich assault”. It follows another infamous case in which a woman was convicted of having assaulted a police officer with her breast. He is out on bail pending an appeal scheduled for October 2018.
On May 11, he was convicted on all three counts of disclosing the identity of a person under ICAC investigation. After the media reported in April 2016 on a potential conflict of interest by Permanent Secretary for Home Affairs Betty Fung Ching Suk-yee related to her exchanging properties with a tycoon and benefitting from the price difference, Ng reported her to the ICAC. Speaking to reporters afterwards, he said he could not disclose anything but hoped Fung would give a public explanation. He also mentioned the case on social media. It was for this he was arrested and charged in April 2017, one year after the supposed offense.
He is one of nine on trial in the Liaison Office 9 case (see above) over a protest at that location on 6 November 2016. The government successfully appealed to change the initial charges against him from two counts of inciting disorderly conduct to two counts of inciting unlawful assembly. The trial proper is scheduled to begin on 9 July.
outcome: trial yet to be held
In March 2016, then Chief Executive Leung Chun-ying sued Kenneth Leung for defamation. Kenneth Leung is a Legco member representing the Accountancy functional constituency and the vice-chair of a pro-democracy group called Professional Commons. At the time of the Umbrella Movement in 2014, a controversy erupted over the CE receiving a HK$50-million payment from a company called UGL which was taking over another company on which Leung was a director. Leung said he received the payment before becoming CE and therefore was not required to declare it. But much about the affair remains to be disclosed. Right before walking into a Legco select committee meeting investigating the matter, Kenneth Leung said the CE might be under investigation by Hong Kong or foreign tax authorities. It is for these remarks Leung Chun-ying brought the defamation lawsuit. It is the first time a Chief Executive has sued a Legco member for defamation. There has been no recent word of the progress of the lawsuit, which is yet to go to trial.