On the Hong Kong government charging 9 pro-democracy leaders with “inciting public nuisance” for the Umbrella Movement

Two and half years after the fact, the government is essentially asserting that these Nine are primarily responsible for starting the Umbrella Movement. Ironically, though, the police themselves were the “principal instigators”.

On 27 March 2017, nine HK pro-democracy leaders were arrested and charged with various counts of “inciting public nuisance”. To my knowledge, they are the first of some 1,000 people arrested in connection with the Umbrella Movement to face this charge.

The Umbrella Movement Nine are Benny Tai, Chan Kin-man and Chu Yiu-ming, the three co-founders of Occupy Central with Love and Peace; Tanya Chan, a prominent politician in the Civic Party who won a seat in the 2016 Legislative Council elections; Shiu Ka-chun, currently the Legco Social Welfare functional constituency representative; Raphael Wong, vice-chair of the League of Social Democrats; Lee Wing-tat, a politician in the Democratic Party; and Eason Chung and Tommy Cheung, who at the time of the 2014 demonstrations were leaders in the Hong Kong Federation of Students.

In charging the Nine with the crime of incitement to public nuisance, the Hong Kong government is effectively arguing that they were primarily responsible for sparking the Umbrella Movement. This harks back to an announcement made by then-Police Commissioner Andy Tsang on 15 December 2014, the day of the police clearance of the last of the three occupation sites in Causeway Bay. He said the police would conduct an investigation into the “principal instigators” of the occupations, and he hoped the investigation would be completed within three months.

From January to March 2015, 43 pro-democracy leaders were called to police headquarters for “arrest appointments”. They were interviewed and then released. Many at the time expected that charges would soon follow. But none did. Until now.

When Tsang made the announcement, I wondered how he could do so with a straight face, since the obvious “principal instigator” of the occupations was the police themselves. From 5:58 pm of 28 September to approximately 2 am of 29 September, they attacked nonviolent demonstrators with 87 rounds of teargas. In doing so, they outraged Hong Kong people who came out in ever greater numbers to stand up to the police attack and show solidarity with the demonstrators under assault. If the police had not engaged in those futile eight hours of attacks, it is doubtful that the occupations would have ever taken place; at any rate, they would not have started as they did.

For the fact of the matter is, nobody planned the occupations, nobody planned the Umbrella Movement, and no single individual or group is responsible for “inciting” the Umbrella Movement. It occurred as a spontaneous direct response to the police teargas attacks, and, in the second instance, to the hardline National People’s Congress Standing Committee decision of 31 August which effectively ruled out genuine universal suffrage while claiming to be allowing it.

The Hong Kong government’s prosecution of the Nine raises once again the issue of government and police accountability. Immediately after the teargas attacks, many people in Hong Kong, including pro-democracy Legco members, called for a formal independent investigation of the roles of the Hong Kong government and police in deciding on the eight-hour-long teargas attacks. In Hong Kong, there is a specific Commissions of Inquiry statute that allows the Chief Executive to appoint an independent commission to carry out an inquiry into a specific issue of great public interest. Recent commissions appointed under the current Chief Executive Leung Chun-ying include one looking into the Lamma ferry disaster and another into excess lead found in drinking water. But the Hong Kong government, pro-Communist Party Legco members and the police stonewalled all attempts to carry out a government-recognized independent investigation of any kind. To this day, no Hong Kong government official or police leader has been held accountable for the decision to attack nonviolent demonstrators for eight hours on 28 and 29 September.

The only explanation the police ever gave was that it was to stop demonstrators from charging police cordons. The claim is doubly misleading: police cordons were not being charged by the crowds and even if that justification might appear credible in regard to the first few teargas shots fired around 6 pm of the 28th, it entirely fails to explain why the attacks continued for eight hours. No Hong Kong government official or police leader has ever taken responsibility for making the decision to attack nonviolent demonstrators with teargas or explained the decision-making behind the actions. In one newspaper interview with an anonymous police superintendent held at police headquarters, the superintendent claimed that he and he alone took the decision. Again, this strains credibility, given the facts that it was the first time since 1967 Hong Kong police had attacked their own people with teargas and the attacks went on for eight hours. A single police superintendent surely couldn’t have been solely responsible for all that with no direction whatsoever from his superiors.

And here we are, two and a half years later, still with no genuine universal suffrage, with yet another tiresome charade of a Chief Executive selection process having been completed (when the real decision is made by the Communist Party), and the Hong Kong government is trying to pin the blame for the Umbrella Movement on these Nine. It’s really quite perverse. They were simply amongst hundreds of thousands fighting for the basic human right of all people, including Hong Kong people, to genuine universal suffrage, a right denied by the Hong Kong government under the Communist Party for nearly twenty years now. So the Communist Party and Hong Kong government abuses the rights of the Hong Kong people (and breaks both international and the Hong Kong Basic Law in doing so) and then punishes people for demanding their rights. Dictatorship in a nutshell.

And the funny thing is, none of the Nine charged really played any particularly large role in “inciting” people to public nuisance. The Hong Kong government may have some evidence which it believes will allow it to nail the Nine legally, but they were really not the main forces behind the occupations.

It’s important to note that in charging the six non-OCLP leaders with incitement, the police said that it was in connection with actions they took from 27 to 28 September 2014. So what they were doing in that two-day period right up to the start of the teargas attacks and occupations will be crucial in deciding whether or not they are guilty as charged in a court of law.

OCLP is bit different since the police said the charges relate to a period from 27 March 2013, when OCLP was founded, to when OCLP leaders turned themselves in to police in early December 2014. The OCLP Three are being charged with “conspiracy to incite public nuisance”, which presumably means the government is trying to convict them for promoting the concept of civil disobedience for a period of more than a year before the occupations. Throughout that period, though, the OCLP leaders (one of whom is a lawyer) were careful to avoid directly “inciting”, and to the extent they can be said to have incited to anything specific act of civil disobedience at all, it was not the Umbrella Movement but something else which was pre-empted by it and never occurred.

The OCLP Three actually did not want to join in the demonstrations when they began with the occupation of Civic Square on the evening of 26 September. On the morning of 27 September, Benny Tai and Chan Kin-man showed up to support the people occupying the square, but they were resistant to declaring Occupy Central open, much to the frustration of some in the crowd who actually heckled them. In fact, they had been planning a small-scale “wedding banquet” for the upcoming 1 October holiday in Central, and one very much had the impression that they didn’t want what was happening before their eyes to pre-empt their plan. As the crowds grew over the course of the 27th, they changed their mind, and in the middle of the night from 27 to 28 September, Benny Tai announced Occupy Central was open. But by then, they were joining forces with a demonstration that had already been underway in one form or another for more than twenty-four hours. Never once did they call for long-term occupations of the sort that eventually ensued.

As for Tommy Cheung and Eason Chung, it is presumably in their capacity as leaders of HKFS that they are being charged. The top leaders of HKFS, Alex Chow and Lester Shum, had been arrested on the morning of Saturday 27 September for occupying Civic Square. The police kept Chow and Shum in prison for the entire weekend, supposedly because they were investigating but really to prevent them from getting out and re-assuming their leadership roles. In fact, it was only when the also-arrested Joshua Wong’s lawyer forced the police to release him with a writ of habeas corpus from the High Court and Chow and Shum’s lawyers threatened the same that the police let them go Sunday night, after the police teargas attacks had started. (Chow and Wong were eventually convicted of unlawful assembly in July 2016 and given, respectively, a suspended sentence and community service. The government is appealing what it regards as too-lenient sentences.)

That meant that during that crucial weekend, the top leadership of HKFS was behind bars. Cheung and Chung undoubtedly played an important role in assuming the reins of HKFS in their absence, and among other things, they helped MC on the HKFS stage next to Civic Square while the weekend demonstrations were happening, but they have never been perceived as “inciting” crowds to take any particular action.

In fact, the amazing thing is, on the evening of 28 September, after the police teargas attacks began, both HKFS and OCLP called on demonstrators to leave and go home. They did this primarily out of concern for their safety since over the course of the evening there were rumors that the police would escalate to use of rubber bullets and even live ammunition. (Yes, the shadow of the June 4 Tiananmen massacre definitely loomed.) I remember this very clearly because I couldn’t believe my ears when I first heard it: You’ve got all these people on the streets, and you’re telling them to go home?! So the ironic thing is, at that moment at least, rather than “inciting to public nuisance”, OCLP and HKFS were telling people to leave.

And here again is proof that it was really the people who made the movement: The demonstrators ignored the calls of OCLP and HKFS and remained on the streets, even while the police continued to attack them.

As for Tanya Chan and Shiu Ka-chun, I remember them well, but primarily for their roles in acting as MCs at the HKFS stage over the course of the weekend, again filling in for the HKFS leaders in prison. I don’t remember much of what Shiu said, but I remember very clearly my impression that Chan, rather than inciting, had a moderating influence. She certainly had no plan to “incite a public nuisance”. If anything, she was just trying to manage the crowd. She kept telling people to calm down and not do anything rash. I have to say I don’t even remember seeing Lee Wing-tat at all that weekend. He may have been there, but I am highly skeptical that he played any major role in “inciting” people to public nuisance. Raphael Wong was always in the mix, always around, but again, I fail to recall a single instance in which it appeared that he was making any particular effort to “incite” to public nuisance. For all I know, maybe the police have some evidence on him relating to one of the other occupation sites besides Admiralty.

To put it simply, the police have the wrong people. Who are the right people, then? Yes, the police. And the people themselves, the Hong Kong people, who in the face of hours of police teargas attacks refused to leave the streets. No one told them to stand up to the police; they did so on their own. And they did so to say, We’ve had enough! This is our city! We refuse to allow you to intimidate and brutalize us! We demand our basic human right of universal suffrage!

Essentially, in prosecuting the Umbrella Movement Nine, the Hong Kong government is using them as proxies for the people, for it cannot send all the people to jail. In prosecuting them, it is prosecuting the Hong Kong people. It is the government against the people.

The tragic thing is that the situation had gotten to the point where the people felt they had no other option than to camp out in the streets of their own city for 79 days to get genuine universal suffrage. And they still haven’t gotten it. It is Hong Kong’s festering sore, and will continue to be. Hong Kong is a city in perpetual political crisis. Rather than trying to solve it, the authorities are trying to imprison people who were demanding that it be addressed in a way consonant with Hong Kong’s obligations under international law.

When the new CE chosen by the Communist Party, Carrie Lam, was selected on 26 March, she said she wanted to “unite” the city. Who is she kidding? If there is a lack of unity, the reason for it is the lack of justice. There will be no “unity” without justice. And she stated clearly in the run-up to the selection that she had no intention to work on political reform. The willful blindness of the Communist Party and the Hong Kong authorities to the real issues of the city and their insistence on taking a hardline (disqualifying Legco candidates, attempting to disqualify elected pro-democracy Legco members, and handing down a special NPCSC Basic Law interpretation to do so, thus further undermining “one country, two systems” and rule of law) is a political dead end that has left this city more pessimistic than I have ever seen it.

One final note: the Department of Justice’s explanation of why it has taken two and half years to bring charges against the Umbrella Movement Nine is ludicrous. It said it had to consider “the material submitted by the Police in respect of another group of 287 arrested persons (including about 335 investigation reports, 300 witness statements, 130 hours of video recordings and 80 items of non-video exhibits) and the relevant legal issues”; in effect, it had so much work. But that is an excuse. It is the responsibility of the DoJ to prosecute in a timely manner, among other things because doing so is important to protecting the rights of the accused. Two and a half years is not timely and not necessary given the nature of the charges brought against the Nine. On the very same day that the Nine were charged, a Hong Kong police officer named Franklin Chu was also charged with assault for hitting people with a baton in Mong Kok during the occupations. His actions were captured on video and broadcast the very same day, 26 November 2014. And yet it has taken the DoJ 853 days to bring charges against him. It has as yet made no statement attempting to explain that delay.

I hope the pro-democracy movement will use the opportunity of the long-delayed prosecution of the Umbrella Movement Nine to focus on the need to continuing pressing for justice, for self-determination and democracy. One probable reason for the timing of the arrests was that the Hong Kong government hopes they will have a deterrent effect. After Carrie Lam was selected as the new CE on 26 March, Demosisto stated that it would hold a “civil disobedience protest” on 1 July, when Lam will be formally appointed CE, most likely by Xi Jinping on a visit to Hong Kong to “celebrate” the 20th anniversary of HK’s “return to the motherland”. It will be interesting to see what exactly happens on that occasion. But believe me, in saying that, I’m not “inciting”.


Written by

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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