HK one year after the start of the occupations: Injustice and complete lack of accountability

A society whose political leader is not chosen freely by its citizens is an unjust society.

A society whose police and public officials are not accountable to its citizens but to its unelected political leader is an unjust society.

Hong Kong is an unjust society, run by an unelected leader supported by police and public officials who are accountable to him, not to its citizens.

The demand for justice and accountability will not disappear.

(For just the gist, read the italicized bit below. For details, information and logic upon which the italicized statement is based, read the rest.For background and substantiation of assertions, see a list after the end of this essay.)

One year after the start of the HK occupations on September 28, 2014, HK is a society suffering the injustice of the continued denial of the basic right of its citizens to genuine universal suffrage under both the HK Basic Law and HK’s international legal obligations as party to the International Covenant on Civil and Political Rights (ICCPR).

In addition, there has been complete lack of accountability of the HK government and police in regard to their actions during the 79-day occupations. The government and police refuse to submit to effective oversight and investigation by an independent agency whose authority they recognize.

The results of the denial of the basic right to genuine universal suffrage and the lack of accountability are that, effectively,

1) the HK government is illegitimate and illegal according to international law,

2) distrust of the HK police force is at an all-time high, and

3) the HK government and police have eroded rule of law in HK.

Regarding governance, HK is in a chronic crisis which the HK government and Chinese Partystate refuse to recognize.

Regarding law enforcement, it is very difficult for the HK government and police to act as credible authorities for law enforcement and protectors of the law when they refuse to be held accountable for instances in which they have acted outside of the law.

Both the HK government and police will continue to suffer erosion of public trust and their authority will be ever less recognized and respected as long as these matters are addressed.

The way out is clear:

· As a matter of urgency, the HK government and Partystate must implement genuine universal suffrage for elections of the Chief Executive and Legislative Council in line with their legal obligations under HK and international law. (It must be stressed that this is the legal obligation of the HK government and Partystate and they cannot blame anyone else for their failure to do so.)

· In cooperation with civil society, the HK government must appoint an independent commission with the power to conduct an investigation into HK government and police actions during the occupations and must act on the recommendations of the commission

· Individuals within the HK government and police who have committed criminal acts must be criminally prosecuted

· The HK government must immediately cease prosecuting citizens for peaceful expression in relation to activities conducted during the occupations

But one year after the beginning of the occupations, none of this has occurred and there is no sign that the HK government has any intention to take any of those actions.

The discrepancy between the HK government and police refusal to held accountable, on the one hand, and, on the other, their efforts to prosecute demonstrators is striking.

The occupations lasted 79 days. They were remarkably disciplined and almost entirely peaceful and nonviolent. Nevertheless, nearly one thousand people were arrested. Upwards of 100 have been prosecuted. Several dozen have been convicted of crimes. In the 79 days of occupation, there is clear video evidence of one case of assaulting an officer and one case of property damage. One demonstrator was convicted of assaulting a police officer and sentenced to three months in prison. Four people have been convicted of criminal damage, three of whom have been sentenced to three months in prison each. It is worth noting that this incidence of criminality at occupation sites is actually significantly lower than the ordinary urban crime rate.

Meanwhile, the HK government has initiated no investigation of government and police actions, and not a single police officer has been held accountable, whether administratively or criminally, in spite of abundant video and photographic documentation of disproportionate use of force, including tear gas attacks, indiscriminate use of pepper spray, systematic aiming of batons at demonstrators’ heads in Mong Kok, multiple beatings of fleeing demonstrators with batons from behind during the clearance of Lung Wo Road, the infamous case of the eight officers beating an arrested and cuffed demonstrator, various cases of individual police officers gratuitously attacking demonstrators with pepper spray and batons, a repeated pattern of police failure to protect demonstrators from violent attacks by thugs in Mong Kok that lead to suspicions that police were actually colluding with the thugs, and dozens of cases of police attacking and arresting media and preventing media from doing their work.

A society whose authorities refuse to be held accountable is not only an unjust society but one on its way to tyranny. Hong Kong usually appears a prosperous, efficient, well-run, disciplined, law-abiding, stable and peaceful society. But it is also a society in perpetual political crisis, a crisis which the Partystate and the HK government appear unwilling or unable to resolve in an equitable and just manner. The actions of the Partystate, the HK government and police in the past year are unjust and detrimental to HK. Their refusal to be held accountable does not bode well for HK’s future. HK people will not simply forget the denial of their basic right to genuine universal suffrage and the unaccountable actions of the HK government and police during the occupations.

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Recently the new HK police commissioner warned HK people against any “misbehavior” related to the first anniversary of the start of the occupations. Venturing to speak on behalf of HK people, though he is not their representative, he said HK people don’t want another Occupy. Well, I thought, if they don’t, then maybe you shouldn’t attack citizens with teargas.

His statement, while rather innocuous, was in keeping with the general obliviousness of the HK government and top police officers. It showed just how little they have learned from the past year and, therefore, just how necessary an independent investigation of HK government and police conduct related to the occupations is.

Just after the last of the three occupied sites, Causeway Bay, was cleared by police in December, then police commissioner Andy Tsang announced the police would conduct a three-month investigation into the “principal instigators” of the occupations. There was never any subsequent announcement about the completion of that investigation, and it is unclear what ever became of it. But, again, I thought to myself, well, look no further than the mirror! The police were apparently interested only in conducting criminal investigations of demonstrators but not in conducting investigations into their own conduct, not even when it appeared criminal, as in the infamous beating of the demonstrator, Ken Tsang. (One year on, while the eight police officers involved were arrested and suspended from duty, no decision has been made as to whether or not to prosecute them.)

There is quite wide consensus amongst most everyone but the HK government and police that the main precipitator of the occupations was the hours-long police tear gas attack on HK citizens of September 28, 2014. To mark the first anniversary of the occupations, a rally will be held, at the center of which is fifteen minutes of silence beginning at 5:58 pm on September 28, 2014. The time marks the moment the tear gas attack commenced, thus indicating that for most people, the tear gas attack is synchronous with the beginning of the occupations.

Amazingly, to this day, almost nothing is publicly known about the tear gas attacks. Who ordered them? Was it someone within the police force? If so, who? Was it someone in the HK government? If so, who? Was it someone from the Partystate? If so, who, and how? This is a basic question that must be answered in order to merely begin the process of accountability. Days after the tear gas attacks, an interview appeared in SCMP with an anonymous police superintendent (in a police station, and with the permission of his superiors) who claimed that he was the immediate supervisor of the officers who fired the tear gas and that he had ordered the attack without consulting his superiors. As the one and only explanation of the attack, this is far from sufficient and hardly credible. Even assuming his assertion was true, that would reflect poorly on the police, allowing a police officer to take such a momentous decision without consultation with superiors. It seems more likely the top police officers, the HK government and the Partystate are hiding behind that one relatively low-ranking officer.

Even on basic points of supposed “fact”, the details of the tear gas attack are unclear. At one point, the police announced that there were “87 rounds” of tear gas. Since then, it’s become almost common knowledge that 87 canisters of tear gas were fired. All over the city you can find the silkscreen print of 87 on umbrellas and t-shirts to commemorate the attack. But we really don’t know whether that’s true, or whether 87 rounds means 87 tear gas canisters or something else. None of that has been independently corroborated or properly investigated, nor has the police ever given any detailed account of the attack.

The only HK government and police justification for the tear gas attack was that it was needed in order to get demonstrators to move back from police cordons. But taken at face value, this explanation makes almost no sense. To begin with, if police are worried about demonstrators pushing up against their cordons, why would tear gas, fired into the indeterminate distance, be the best means of getting those only centimeters away from the police to move back? Presumably the idea was that if those behind the people in the front lines were dispersed with tear gas, then perhaps those in the front lines would move back too, but that has never been explained, and it still seems rather far-fetched. On top of that, the tear gas attacks went on for hours, long after the justification of using tear gas to force demonstrators to move back from police cordons could be credibly made, for by that point, there was no situation in which demonstrators were too close to police cordons. So even assuming the police’s justification makes sense for the beginning of the attack, it makes no sense for the rest of it. Indeed, past a certain point, it appeared that the police were shooting tear gas randomly because they didn’t know what else to do.

Apart from that, assuming the police intended the tear gas attack as a crowd control measure, the police has never explained why its measure failed so miserably as to essentially trigger the very last thing it wanted to see, the occupations. Putting aside issues of rights and legality for a moment, what kind of bad policing is that?!

Indeed, from a strictly policing perspective, the police made a series of bizarre and poor decisions that lead up to that catastrophic one, including the following: 1) they took more than twelve hours to clear from Civic Square the 61 students who were occupying it, 2) while they waited, they used pepper spray indiscriminately on those outside of Civic Square who the police claimed were assembled illegally, thus provoking more people to come out in support of their fellow citizens under attack, and 3) they prevented access to Tim Mei Avenue where the newly arrived demonstrators wished to go, thus creating an impossible crowd control situation on Harcourt Road that lead to demonstrators stepping out into the road, since they had nowhere else to go, so crowded had the sidewalks lining the road become. Then they fired the tear gas. If you didn’t know better, you’d almost think the police deliberately created the occupations through their blunders. And yet, no investigation. As far as we know, there was not even an internal investigation from a strictly policing point of view. In March, such an investigation was announced, but no further word was heard of it.

In the absence of a transparent independent public investigation determining to the contrary, there exists strong suspicion that the police were ordered to attack citizens with tear gas by their political superiors in the HK government and/or Partystate. If so, then rather than being a law enforcement decision, the tear gas attack was a political decision. The people of HK deserve to know whether or not this was the case. If it was, the implications are grave, for it essentially means that the HK government turned the police from a law enforcement agency into its own private militia to defend its interests. Indeed, ever since, amongst many HK people, the police has been perceived as a guard dog of the regime. If the police force truly wishes to clear its name, the best way to do so would be to establish exactly how the decision was taken, unless, indeed, it was a political decision and they wish to keep that hidden.

There are four basic principles for judging police use of force, according to the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials and outlined in the new Amnesty guidelines for implementation of those principles. They are legality, necessity, proportionality, and accountability. In other words, is the force used for a lawful law enforcement purpose (as opposed to, for example, defending the political interests of the regime)?; what necessitates force being used at all and what determines how much force should be used?; is there a balance between the benefits of the use and the possible consequences and harm caused by its use? These principles should be used as the criteria to judge the HK police tear gas attacks and other cases of police use of force during the occupations.

As regards the legality of the tear gas attacks, only a day after they occurred, HKU law professor Simon Young examined them against the backdrop of HK law and concluded, “Thus it seems the Hong Kong Police Force have more than a clear case to answer to justify their use of force on the protesters.” The HK police still have not answered that case or explained how they legally justified their use of force.

It seems quite clear to me and to many an HK person that the tear gas attacks were neither necessary nor proportionate. As concerns necessity, they achieved the exact opposite purpose they presumably intended. As concerns proportionality, HK demonstrators were peaceful. There was not a single act of violence or destruction of property, impressive considering the situation and large number of people. Police claimed demonstrators were threatening police cordons. But video evidence does not suggest this, and they were certainly not doing so through either threat or use of violence. At innumerable demonstrations down through the years, demonstrators stood close to police cordons without police deeming it necessary to attack them with tear gas for doing so. Prior to the attack, police had raised their infamous flags declaring the assembly “unlawful”, but they never gave demonstrators an opportunity to assemble elsewhere besides the road, for example, in nearby Tamar Park, which at the time the attacks commenced was mostly empty.

Indeed, the police tear gas attacks need to be set in the wider context of possible infringements of freedom of assembly that had occurred for days leading up to the attacks. The student class boycott, scheduled for September 23 to 26 in Tamar Park, was kicked out of the park on its last day, the 26th on the grounds that, as the Leisure and Cultural Services Department put it, groups could reserve park facilities for up to three days maximum, a rule that up to then no one had ever heard of (officially sanctioned events run for upwards of a week or more on a regular basis in Victoria Park), and that another group had requested use of the park on the 26th. No one was surprised to learn it was a pro-Partystate group. That group was granted permission to use the park on the 26th, not even to hold an event but to make preparations for October 1 celebrations, though that date was five days away. As it turned out, the group hardly used the park at all that day, just delivering its equipment but not really getting going until the weekend, the following day. While there were perhaps one or two dozen members of the pro-Beijing group in the park setting up, the students had no recourse but to crowd onto the sidewalks along Tim Mei Avenue on the last day of the class boycott when there was an even larger number of students than on previous days since it was the only day of the secondary student class boycott and many secondary students joined. It was pathetic to see how squeezed in they were, sitting on the sidewalk in neat rows in their school uniforms. They were participating in a full day of lectures, debates and discussions while nothing was occurring in the park from which they’d been evicted. It was that evening that the students “reclaimed” Civic Square — reclaimed because they were going into a place that had been free for the public to use only two months before, when the government made the abrupt decision (taken without so much as pro-forma public consultation) to seal off the public space from the public and erected a high fence around it. Then, when supporters of the students gathered on the sidewalks outside the square along Tim Mei Avenue, where the students had formerly been allowed to gather for the last day of the boycott, the police declared their assembly “unlawful” and used pepper spray indiscriminately against them, though, again, they were entirely peaceful and nonviolent. And finally, when more people arrived to support them, numbering in the thousands, police did not allow them to enter Tim Mei Avenue nor did police make any effort to accommodate them or suggest an alternative space (such as Tamar Park). All told, the HK government and police had denied demonstrators use of Civic Square, Tamar Park, and the sidewalks of Tim Mei Avenue and had barred people from entering Tim Mei Avenue. So where they hell are they supposed to go then? The street, obviously. This pattern must surely constitute unreasonable restrictions on the freedom of assembly, especially given the fact that, to emphasize, the demonstrators were entirely peaceful and nonviolent.

The crowd clearly had a right to assembly peacefully and it was the responsibility of the police to facilitate them exercising that right in an orderly manner, not to prevent them from doing so, though the latter appeared to be the police’s intent. Indeed, the police, at least in terms of the orders given from above, appeared to treat the demonstrators as their adversary, if not downright enemy. The perception of demonstrators as the enemy appears to be an attitude that began to be inculcated in at least some members of the police force some years back, roughly corresponding with the former police chief Andy Tsang’s tenure, and a thorough independent investigation would look into this matter of police culture: Were there practices, statements or orders that encouraged police to regard demonstrators as an opponent or adversary? Were any orders given that were based on this perception? The July 1 pro-democracy march of 500,000 people was a case in point: For the first time ever, five march organizers were arrested, one for idling the engine of the lead vehicle of the march! Once again, the huge march was peaceful and nonviolent — the organizers should have been praised for holding such an orderly march, but instead they were arrested. Police actions appeared exceedingly petty, to say the least, and seemed to reveal an animosity toward demonstrators on the part of top police officers.

In this sense, the tear gas attacks were the culmination of a series of decisions made by the HK government and police that resulted in infringements on freedom of assembly around government headquarters. In a sense, with the occupations, they got what they were asking for. From this angle, the police use of tear gas was a desperate attempt to correct previous blunders it had made. It could hardly be considered proportionate.

As regards the fourth principle, accountability, there has been none. Up to now at least, the HK government and police have clearly failed where that principle is considered, not having made a single effort to investigate matters related to accountability.

Indeed, what the past year has made clear is the complete inadequacy of the sole mechanism (short of criminal prosecution) that exists that for accountability regarding police behavior. That is the Independent Police Complaints Council, which monitors the Complaints Against Police Office, an office within the police force. Complaints against police must first be made to the police (CAPO), which then decides which complaints are “reportable” and sends them on the IPCC. Of the hundreds of complaints against police related to the occupations, CAPO ruled 172 “reportable” and forwarded 150 to the IPCC. The IPCC has reported it is actively investigating 16. Up to now, the IPCC has amazingly considered only one complaint actionable, the infamous case of Police Superintendent Franklin Chu gratuitously beating a demonstrator with his baton in Mong Kok. It was a pretty clear cut case, well-documented with irrefutable video evidence. Indeed, the IPCC, against intense political pressure, ruled that Chu had assaulted the demonstrator. The police disagreed. The IPCC has no power to impose its decision upon the police or in any other way hold the police to account in cases of disagreement. In other words, all the police have to do is disagree, and nothing happens. In cases where the two disagree, the Chief Executive is the only one with the power to make a decision. Don’t expect one from him any time soon. The Franklin Chu case was the first time in years that the IPCC had attempted to hold the police accountable, and it failed. As an accountability mechanism, it is little more than a charade.

Apart from this mechanism, there are only criminal procedures. The eight police officers who were filmed beating Ken Tsang after having arrested and handcuffed him were arrested and suspended from duty. But nearly a year after that occurrence and months after the police apparently finished its investigation and sent its report to the Department of Justice, there has been no word as to whether or not the latter intends to prosecute. So far, a dead-end there too.

In short, even in the most clear cut and obvious individual cases of illegitimate if not criminal use of force, there has up to now been no accountability.

This is not to even consider cases of what appeared to be systematic illegitimate use of force of the kind that leads one to suspect that frontline officers were given orders to act in such a way, cases such as officers aiming baton blows at demonstrators’ heads in Mong Kok, or officers beating fleeing demonstrators from behind while clearing Lung Wo Road, or the many cases of indiscriminate use of pepper spray.

But going back to the tear gas attacks for a moment longer:

Some might think, What’s the big deal? After all, no one was killed or even seriously injured. Police do much worse many other places in the world. But for HK, in the HK context, it was a cataclysmic, paradigm-shifting, historical event. A year on, it may be easy to forget just how profoundly shocking those attacks were to virtually the whole HK population. After all, it was the first time since the leftist riots of 1967, which involved a considerable degree of violence and terrorist bombings on the part of the demonstrators, that the HK police had attacked its own people with tear gas. In the days immediately after the tear gas attack, people across the political spectrum (with the notable exception of the stalwart pro-Partystaters) expressed their indignation, consternation, outrage.

In one of the strongest statements it’s ever made, the Hong Kong Bar Association said it was “deeply disturbed by, and deplores and condemns, the excessive and disproportionate use of force” by police. It went on: “There can be scope for disagreement on the underlying political debate or demands leading to the demonstration. Some demonstrators may have committed criminal offences… However, none of the above matters justify the use of excessive or disproportionate force by police against unarmed civilians as a matter of law and common decency.”

Peter Mathieson, the president and vice-chancellor of HKU, in an email to students, staff and alumni, said HKU “profoundly regrets the escalation of events in recent days. We condemn violence of any kind by any party. We cannot understand the use of tear gas yesterday: the police and the government are accountable for that decision.”

23 pan-democratic Legco members issued a joint statement calling for an emergency meeting to debate a motion to impeach CY Leung. The statement said, “We urge the administration to stop suppressing the people violently, it should talk to the people; it should also re-open Civic Square and resume the people’s reasonable right to use the area.”

Legco member Wong Yuk-man said, “Not a stone or a glass bottle has been thrown over the past week, but police decided to resort to tear gas. All people did was raise their hands.”

Former Chief Secretary Anson Chan said: “This is a sad day for Hong Kong. Pictures of our Police Force firing pepper spray and tear gas into the faces of unarmed protestors will shame our government in front of the whole world.”

In all, pupils and teachers from at least 31 secondary schools went on strike to protest the police attack on civilians.

Lee Shing-ho, a co-organizer of the strike at CNEC Lee I Yao Memorial Secondary School, said, “The senior students took the initiative to leave their classrooms. This is not a strike led by the teachers. We want to protest the police’s violent behavior.” Liu Cheuk-laam, from SFTA Lee Shau Kee College said, “We’re in a totally different situation now after the tear gas. All students should protest.”

The Professional Teachers Union, the largest union in HK and one with a long pro-democracy history, called on teachers to go on strike. PTU president Fung Wai-wah said, “We’re talking about what’s right and wrong… It’s important to let students discuss and express their feelings. Teachers cannot escape from this.”

Don Chan Hing-lung, chairman of the Swire Beverages Employees General Union, said 200 delivery workers at the Swire Coca-Cola were on strike to support the civil disobedience movement. “We don’t care if we lose money. We are here for the future. If we don’t come, there won’t be one.”

A spokesperson for Swire Coca-Cola was amazingly understanding, stating, “delivery staff members of Swire Coca-Cola HK who are members of a union have been on strike today and staged a sit-in outside the Siu Lek Yuen plant… The Company understands that it is an action in response to union calls for strike in support of the Occupy Central protests. The strike was initiated by the related staff of their own volition and the company has expressed understanding about the action.”

Spencer Wong, chief executive of advertising company McCann Worldgroup Hong Kong, said in a message to his staff, “It’s up to you whether you come to work of not. The company will not punish anyone who supports something more important than work.”

About 1,000 social workers and social work students gathered at Polytechnic University to protest police violence and show their support for the movement. Social worker Simon Lai said, “I could not believe that the police used tear gas against student protesters… The students were not armed. There were tens of thousands of them yesterday and the tear gas could have led to a stampede.”

It was one of those brief moments in history when virtually an entire population was unified in condemnation.

The HK government decided the best thing to do was to just wait it out. It stuck tightly to script: appropriate force, appropriate force, only occasionally slipping up: Chief Secretary Carrie Lam once referred to the police attacks as “appropriate violence” but her press office immediately corrected the slip.

The government apparently thought it could just ignore the problem until it went away. But when you don’t deal with a serious problem, it festers, mutates, becomes worse, metamorphoses. In this case, it has resulted in a serious lack of confidence in the police force as an impartial law enforcement agency. The latest HKUPOP survey in June on the popularity of the Hong Kong disciplinary forces and the PLA Hong Kong Garrison showed police popularity at its lowest since 1997, when the survey began, even lower than in December 2014, when the occupations concluded. The HK government and police have clearly not understood that police actions during the occupations have seriously undermined public confidence, and as recent statements suggest, intend to continue to bury their heads in the sand.

Yet, except when they were at their worst, I often found myself sympathizing with the police (at least the frontline officers, at least the ones who didn’t violently attack protesters; their superiors are another matter) for they were put in the difficult position of defending an unlawful government intent on continuing to deny its citizens the basic legal and human right of genuine universal suffrage. A police force is meant to serve and be accountable to the citizens, but in this case, it served an unlawful government defending itself against the citizens.

In response to the occupations, the HK government quickly devised a propaganda template, according to which the occupations were always referred to as the “illegal Occupy movement”, parroting none other than Xi Jinping himself (and in so doing, showing exactly whom it served). It was hard to see how a whole movement — especially a peaceful, nonviolent movement — could simply be characterized as illegal in one big brush-stroke, especially when its illegality had not been tested in a court of law. In what sense illegal? More or less illegal than denying a people their right to choose their own government through free and fair elections, their right to run for and be elected to office, even when universal suffrage was stipulated in the mini-constitution of the territory, even when the mini-constitution explicitly stated that as party to the International Covenant on Civil and Political Rights, HK was obliged under international law to uphold and implement the rights contained therein, including free and fair elections and the right to vote, run for office and be elected according to the internationally recognized principles of universal suffrage?

While it is perhaps easy to fixate on the police, since they are one of the most tangible faces of injustice and lack of accountability, it is important to remember that they are only a secondary problem, a problem caused by the underlying problem of the denial of the basic right to genuine universal suffrage by the HK government and Partystate. That is the basic injustice that pervades HK politics and society, a fundamental problem that the Partystate and HK government can’t just simply wish away. It will fester and mutate as long as they continue to deny justice to the city.

When the government insists that others follow the law while it itself breaks both HK and international law, when the government itself is technically “illegal” (since it is not elected by universal suffrage as required by both HK and international law), it perverts the whole meaning of law, threatening to undermine rule of law by placing itself above it. That is why recent Partystate statements to the effect of the Chief Executive being “transcendent” and there being no true separation of powers in HK have caused alarm: It becomes apparent that the objective of the Partystate and HK government is that the HK government eventually attain a position similar to that of the Partystate on the mainland; namely, of being above the law and therefore of being, in effect, “the law,” all the while being, quite literally, an outlaw.

We are accustomed to being so confident of the foundations of the rule of law in HK that people tend to laugh off warnings about the Partystate and HK government seeking to move in the direction of placing the unelected Chief Executive and government above the law, but given recent trends, and the pattern of statements and logic on the matter emanating both from the Partystate and the HK government, we should be on guard. Their respect for the law is less than exemplary, to put it mildly. It is typical Partystate practice to break the law, to act above the law, and then to say that actions were taken “in accordance with the law”. It is rule by fiat, not of law, and signs of it can be seen in HK as well, especially in regard to the HK government’s defiance of the law regarding universal suffrage and its refusal to hold itself accountable for actions taken and decisions made during the occupations.

The refusal of the Partystate and HK government to follow the law also highlights a major problem with international law. It is clear they are breaking international law, but there are no enforcement mechanisms when it comes to human rights, especially in this part of the world, (In Europe, for instance, there is the European Court of Human Rights where citizens can bring cases against their governments), and not even any effective sanctioning mechanisms. In October 2014, the UN Human Rights Committee, a panel of 18 experts that monitors implementation of the ICCPR, called on China to implement universal suffrage in HK and stressed that meant not only the right to vote but the right to run and be elected to office. It expressed concern that China intended to effectively pre-screen candidates based on their political opinion and stated this would constitute an “unreasonable restriction”. The problem is, there has been no follow-up on its conclusions. The UN Human Rights Council has failed to act. The Council is made up of states elected to the council by other states. That is to say, it is not a independent judiciary organ but a political organization, and it acts as such. States are more interested in advancing their interests than in safeguarding and promoting human rights, which includes sanctioning states that break international human rights law. Though the Partystate and HK government are defying international law, there are no international mechanisms to compel them to follow it. This problem is exacerbated by the fact that no other country has individually been willing to call China out on the matter and say in no uncertain terms that it is not abiding by its obligations under international law.

A third and final matter in regard to injustice and lack of accountability:

There has been insufficient monitoring of the actions of the police and Department of Justice in regard to arrests and prosecutions related to the occupations. While media have reported on individual cases, no independent NGOs or, specifically, human rights organizations have consistently tracked the patterns that have arisen.

To my knowledge, my own documentation (see links at end of essay) is the only that exists and can be viewed publicly that has attempted to do that, but my work is insufficient for a number of reasons: it is based solely on monitoring of media reports and the few reports by organizations that have emerged, all of which are incomplete, and I can hardly give my full attention to it, which means, for instance, that my overview of legal cases hasn’t been updated in two months, though many related occurrences have taken place.

What has emerged from the overview is the following: Upwards of a thousand were arrested in relation to the occupations (1,500 if you include those arrested last July 1, which I do). The vast majority of those have not been charged or prosecuted. A little under 100 have been prosecuted on a variety of charges including assaulting police, obstructing police, obstructing bailiffs, contempt of court, resisting arrest, behaving in a disorderly manner in a public place, failing to produce ID when demanded by police, criminal damage of property, inciting unlawful assembly, unlawful assembly, and obstructing traffic. Of those, about 30 have been convicted of crimes. That means a tiny percentage — far less than 1% (.03%, to be exact) — of those arrested were convicted of a crime.

This begs the question of why so many were arrested in the first place: were the arrests “preventative”? In other words, did the police really suspect those arrested of having committed crimes or were they arresting them simply to “get them out of the way” or to retaliate? If the police did suspect those arrested of having committed crimes, why did they not follow through, press charges and send a report to the Department of Justice so that that latter could prosecute? Was there insufficient evidence? If so, what does that say about the police record in making arrests? If there was sufficient evidence in a large number of cases of those arrested, why weren’t more prosecuted?

And how did the police and DoJ select the one-hundred or so cases they have decided to prosecute? The whole process has an arbitrary, inconsistent, incoherent quality to it, especially considering that the former police chief announced a three-month investigation into the “instigators”. That suggested police and DoJ would weight relative severity of crimes and responsibility for occupations in deciding whom to prosecute. Some prosecutions were fairly high-profile and well documented incidents, such as of people smashing Legco windows (four were convicted of criminal damage and unlawful assembly, the latter charge rather mysterious — why them and virtually none of the hundreds of others arrested on that charge?). But many prosecutions seemed very random, many for what appear to be the most minor of crimes, for example, those prosecuted for obstructing police in Lung Wo Road — they were sitting on the pavement, no different from thousands of others in the occupied areas.

And while several elderly or seemingly eccentric blue-ribbons have been prosecuted for fairly mild attacks on demonstrators (such as poking a demonstrator’s throat with an aggressive finger) or threats to attack them (such as one threatening to light himself and nearby demonstrators on fire with paint thinner), not a single thug has been prosecuted for what appeared to be systematic and perhaps triad-orchestrated attacks on demonstrators in Mong Kok. Indeed, to public knowledge, there has been no police investigation of any kind into those attacks, which appeared to be coordinated. Because of many cases of police treating the thuggish attackers leniently by leading them away from the scene (as if their first priority were to protect the attackers from demonstrators), police are suspected by many of having colluded with the thugs.

Many of the cases that have actually gone to trial have been of exceedingly poor quality. The conviction rate has been far below the average conviction rate for all criminal trials (something like 25% versus 50%). Given that the police and DoJ had upwards of one-thousand cases to choose from, that police were constantly recording the demonstrations with special video teams, and that abundant video and photographic documentation of the demonstrations exists in the media and social media, it seems that the police and DoJ should have been able to make good decisions as to which cases stood a strong chance of resulting in convictions. Instead, on numerous occasions, video evidence has shown that police testimony was inaccurate, and on numerous occasions, magistrates have criticized the police and DoJ for presenting false, misleading and unreliable evidence.

Of course, the most convincing reason for the low number of prosecutions as a percentage of arrests, low number of convictions as a percentage of prosecutions, and low quality of many cases brought to court is that there was hardly any crime committed in relation to the occupations. Considering the very large number of people involved — in the hundreds of thousands — it is really quite remarkable how little criminality there was. Of course, that’s not surprising at all, considering HK pro-democracy demonstrators are largely self-policing and have over the years assembled again and again in the hundreds of thousands without any crime at all.

But the police and DoJ were probably under pressure from the HK government to produce a semblance of “illegality” and this may be one reason why they’ve brought such poor cases to court. Once the Partystate and HK government settled on the propaganda term “illegal Occupy movement”, perhaps they felt they needed to back that up with convictions. But 30-some convictions out of the hundreds of thousands who participated does not an “illegal” movement make; quite the contrary: It puts paid to the HK government’s characterization of the “Occupy movement” as “illegal”.

The only conceivable charge with which the DoJ could credibly nail demonstrators is unlawful assembly, but up to now, there have only been five prosecutions and convictions for unlawful assembly (and in all five cases, defendants were charged with another crime which was essentially the primary one). Why have the police and DoJ decided not to prosecute unlawful assembly? Is it because they don’t want to face legal challenges to the Public Order Ordinance, which has been repeatedly criticized as written in such a way as to lend itself to unreasonable infringement of freedom of assembly?

And why, up to now, have the police and DoJ not prosecuted any of the “instigators”, which the previous police chief singled out for investigation?

Partial answers to these questions may come soon since the police have recently charged three student leaders with inciting unlawful assembly and unlawful assembly in relation to the occupation of Civic Square on the evening of September 26, 2014, preparing the way for their almost certain prosecution. These would be the first “instigators” to be prosecuted, and for a crime, no less, which they arguably did commit. (Arguable because they entered what had been and really should have still been a public space.) It also appears that at least two student leaders will face contempt of court charges related to the police clearance of Mong Kok. These charges are ludicrous- I’m amazed that the police and DoJ intend to pursue them, and it would be outrageous if an HK court actually convicted them. The student leaders were drug by police out of a crowd on Nathan Road and wrestled to the ground. In no sense were they “in contempt of court” unless the DoJ can successfully argue that simply being present at the scene constituted contempt, and if the court accepts that argument, then so much for freedom of assembly.

In short, an overview of the record of arrests and prosecutions related to the occupations shows that justice has not been delivered by the police and DoJ. In fact, a separate investigation should be made into the questions presented here, in order to get to the bottom of why the police and DoJ approaches to prosecution have been so scattershot, arbitrary, inconsistent and incoherent.

The upside is that the HK judiciary has so far stood up pretty well to attempts by the HK government to essentially prosecute people for their political beliefs and expression. It is highly probably that one ulterior motive of the HK government has been to prod the courts to see if there areany weaknesses that could allow it to compromise the independence of the judiciary. Some magistrates have made some questionable decisions, in particular convicting based on insufficient evidence or relying solely on police testimony. But they have also forced the DoJ to drop a good many cases as frivolous.

Thus, we find that one year after the beginning of the occupations:

  1. The Partystate and HK government continue to deny the basic right of genuine universal suffrage to the people of HK, and the HK government therefore continues to be illegal under both HK and international law, resulting in a situation of basic injustice and a chronic governance crisis;
  2. The HK government and police have refused to be held accountable for their decisions and actions related to the occupations and have undertaken no accountability initiatives, resulting in public lack of confidence and trust in the HK government and police and the prospect of the HK police being increasingly used as tool of the government rather than being accountable to the people and the law;
  3. Actions taken by police and the Department of Justice in regard to arrests and prosecutions of demonstrators have been systematically arbitrary, inconsistent, incoherent and flawed, calling into question their competence and integrity.

A society whose political leader is not chosen freely by its citizens is an unjust society.

A society whose police and public officials are not accountable to its citizens but to its unelected political leader is an unjust society.

Hong Kong is an unjust society, run by an unelected leader supported by police and public officials who are accountable to him, not to its citizens.

The demand for justice and accountability will not disappear.

25 September 2015

KTG

Related essays and background information

Overview of legal cases related to the HK Umbrella Revolution, including the occupations of Admiralty, Mong Kok and Causeway Bay

https://goo.gl/2hxC9g

Legal cases related to the HK Umbrella Movement, 26 June to 14 July 2015 (updates for the period indicated)

https://goo.gl/FvFkxI

A Brief Encounter with the HK Police…

…which leads me to wonder: To what extent have the HK police been corrupted by their use as guard dogs of an illegitimate regime?

https://goo.gl/v04O2j

Human Rights Watch: Hong Kong: Investigate handling of “Umbrella Movement”; drop charges against peaceful protesters; restart electoral reform

http://www.hrw.org/news/2015/09/24/hong-kong-investigate-handling-umbrella-movement

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Author of ‘Umbrella: A Political Tale from Hong Kong’ and ‘As long as there is resistance, there is hope: Essays on the Hong Kong freedom struggle…’

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