Kong Tsung-gan, HKFP
The unprecedented Hong Kong government crackdown on the pro-democracy movement continues apace, and this month is set to be its busiest yet. Below is an overview of January court dates in government prosecutions of pro-democracy leaders and activists: four trials definitely, six trials probably, and 55 defendants.
Since the 2014 Umbrella Movement, the Hong Kong government, under the influence if not direction of the Communist Party, has carried out a wide-ranging and unprecedented attack on the pro-democracy movement.
This attack has taken several forms, including the suddenly imposed requirement of new loyalty pledges by candidates for public office, the Electoral Affairs Commission’s arbitrary disqualification of potential candidates on political grounds, the denial of public space – including venues for demonstrations and New Year’s market stalls – on spurious grounds of “public safety”, and the refusal to register political groups such as Demosistō.
But at the heart of the government strategy to keep pro-democracy groups on the defensive and to intimidate ordinary people into not participating in the movement are the 39 legal cases (criminal and civil) it has brought against 26 pro-democracy leaders, as well as prosecutions of dozens of grassroots activists.
Of the 39 cases brought since 2014 against pro-democracy leaders, as of January 3, 19 cases have concluded, resulting in 12 convictions, five prison sentences, seven acquittals, and six disqualifications from the Legislative Council. These figures do not add up, due to the difference between number of cases and number of counts per case. Defendants are appealing in seven cases. Three cases are on-going and the trials of 17 defendants have not yet begun.
Photo: Johnlsl, via Flickr.
In addition to the cases against leaders, dozens of grassroots activists have also been prosecuted. Particularly striking is the government’s aggressive legal strategy to appeal non-custodial sentences. Upon appeal, it has succeeded in getting 16 peaceful demonstrators sent to prison for terms ranging from six to 13 months, all for the nonviolent offense of unlawful assembly.
Conviction in such cases would, up until these precedent-setting cases, normally be punished with a non-custodial sentence of community service (which 15 of the 16 originally received), or a fine, or a prison term either suspended (which one of the 16 received) or ranging from three weeks to, at most, three months.
Since being sent to prison, all 16 convicts have successfully applied to the Court of Final Appeal to hear their appeals, and the CFA has granted bail to 14 of the 16 convicts pending appeal. The other two have not applied for bail.
January looks to be the busiest month yet in court cases related to the crackdown, with, in all, 55 defendants. Three separate trials of 20 defendants are set to begin. Three appeals of prison sentences will definitely be heard by the Court of Final Appeal, and probably 13 others as well. Sixteen already-convicted defendants will most likely be sentenced in January. Amongst the defendants are two current Legco members, three former Legco members, six leaders of political parties, and nine leaders of the Umbrella Movement as well as other well-known activists.
By the time the trials conclude, it is not inconceivable that many who are at the heart of the pro-democracy movement could be sentenced to many years in prison.
As never before, the government is using the courts to criminalise and delegitimise the pro-democracy movement. Some of these cases have received substantial media attention, but more attention should be given to the overall pattern, which in terms of the number and variety of cases and the defendants involved clearly indicates a coherent and sustained political attack.
Photo: mameshiba1985, via Flickr.
What happens to the rule of law when an unelected government uses the law toward political ends, in particular to attack its opponents? We recognise this because it is, after all, standard practice on the mainland, but is it starting to happen in Hong Kong too?
In democratic societies, it is a custom of political culture for the government to avoid, if possible, prosecuting political opponents. Many countries have laws granting legal immunity to members of parliament for exactly that reason – to avoid a conflict of interest on the part of the government.
Of course, that does not mean that politicians and political activists should never be prosecuted for clearly identifiable, egregious and serious crimes, but at the very least, a democratic government should do its best to ensure that any such prosecutions are entirely necessary and untainted by political calculation.
In a new book, How Democracies Die, Steven Levitsky and Daniel Ziblatt identify two key killers, one of which is the “unrestrained exercise of legal authority”.
They say, “The idea that political opponents are legitimate, and that governmental powers must be handled with restraint, is the glue that keeps a democracy intact.” Hong Kong does not now and has never had democracy, but it has had fairly robust rule of law, a crucial safeguard of civil liberties, and this now appears to be threatened by the Communist Party and Hong Kong government’s unrestrained exercise of legal authority.
File photo: GovHK.
Strictly speaking, Hong Kong does not exist under rule of law but under the rule of the National People’s Congress Standing Committee, which calls itself the law. Rule of law in Hong Kong, such as it is, exists at the sufferance of a Party which, according to the constitution of the People’s Republic of China, is above the law, a paradox.
In this sense, rule of law in Hong Kong is exceedingly fragile, even more so than elsewhere, and is damaged when the government declares itself, on the one hand, above the law, while on the other hand, attacking its political opponents under the guise of rule of law.
Some argue that the fact that the government has successfully prosecuted eight police officers for assault during the Umbrella Movement, as well as the former Chief Executive Donald Tsang, indicates the impartiality of the system.
This is true to an extent. There are prosecutors of integrity who have some discretionary power, and judges rule according to the law.
But it took incessant agitation over months and years to prod the government to prosecute the officers in the face of the intransigence of the police force, and the fact remains that the prosecutions of government opponents are far greater in number and much wider ranging.
Some argue that the large increase in the number of political opponents facing legal proceedings brought by the government is no more than the unavoidable fall-out from the Umbrella Movement, but in fact, only 15 of the 39 legal cases against pro-democracy leaders are related to offences allegedly committed during the movement.
File photo: Wikimedia Commons/Pasu Au Yeung.
Others have said that political opponents have increasingly adopted more aggressive measures that push at and even cross the bounds of the lawful. But none of the 24 cases unrelated to the Umbrella Movement involve direct action. In fact, what is most striking is that 12 of those cases are related to the actions of pro-democracy Legco members in their capacity as elected representatives.
Six pro-democracy Legco members – Baggio Leung, Yau Wai-ching, Lau Siu-lai, Long Hair, Edward Yiu, and Nathan Law – were disqualified for adding to or changing their oaths of office.
One, Cheng Chung-tai, was convicted of desecrating the PRC and Hong Kong flags in Legco by turning upside down mini-flags on the desks of pro-Communist Party representatives.
Two disqualified Legco representatives, Baggio Leung and Yau Wai-ching, are on trial for trying to barge into a Legco meeting from which the Legco President had barred them.
One, Long Hair, was acquitted of misconduct in public office for failing to declare a donation. Long Hair will also stand trial for contempt of Legco for snatching a pile of documents off the desk of a government representative in Legco.
And one, Kenneth Leung, is being sued for defamation by former chief executive Leung Chun-ying.
Kenneth Leung. Photo: Kenneth Leung via Facebook.
Prior to these prosecutions, there was a long-standing consensus that disciplinary matters fell within the purview of Legco. That has changed. Actions by elected Legco representatives of which the government disapproves are now regularly prosecuted in a court of law.
One should not forget that the underlying cause of the chronic political crisis facing Hong Kong is that the Communist Party and the Hong Kong government have not implemented genuine universal suffrage and thus stand in non-compliance with the Basic Law and international law. When the government itself is illegal and above the law, what do you do?
The most egregious breach of law, the denial of genuine universal suffrage, meanwhile, goes entirely unpunished. Indeed, neither the Communist Party nor the Hong Kong government has announced any plans to address this 20-year delinquency. They can prosecute as many people as they like, but there will be no peace or justice in Hong Kong until that occurs.
Overview of January legal cases
Most of these trials span many months from the time of the initial hearing to their conclusion, some even years, especially those including appeals. Some of the defendants, such as the “Umbrella Movement nine”, were charged years after their alleged crimes were committed. All of the trials cost the defendants significant time and money.
File photo: HKFP/Ellie Ng.
The government strategy is that, if it cannot get convictions, at least it can keep the defendants pinned down in defending themselves for lengthy periods of time instead of doing what they would otherwise be doing, fighting for justice.
Thursday, January 4
Start of the trial proper of Sixtus Baggio Leung Chung-hang and Yau Wai-ching along with three of their assistants, Yeung Lai-hong, Chung Suet-ying, and Cheung Tsz-lung, all of Youngspiration, for unlawful assembly, with an alternative charge of forcible entry:
On Tuesday, January 2, Kowloon City Magistrates Court judge Wong Sze-lai ruled after preliminary hearings that the five have a “case to answer”, meaning there is sufficient evidence to proceed to trial.
The charges relate to an incident in the Legislative Council on November 2, 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. Before that, the President had granted them a retake but then rescinded the promise after the Hong Kong government announced it would take the two to court to strip them of their seats.
Baggio Leung and Yau Wai-ching. Photo: Stanley Leung/HKFP.
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 have been vacant for 14 months now and will be filled in a by-election on March 11.
Tuesday, January 9
Beginning of four days of pre-trial hearings in the case of the “Umbrella Movement nine”, Chu Yiu-ming, Chan Kin-man, and Benny Tai (all of Occupy Central with Love and Peace), Lee Wing-tat (Democratic Party), Shiu Ka-chun (Legco member representing the Social Welfare functional constituency), Tanya Chan (Legco member from Civic Party), Raphael Wong (League of Social Democrats), and Tommy Cheung and Eason Chung (both of Hong Kong Federation of Students), all charged with various counts of “conspiracy to incite public nuisance” and “inciting public nuisance” in relation to the start of the Umbrella Movement on September 28, 2014.
This case is basically intended to place legal blame on these nine for starting the Umbrella Movement, an utterly ridiculous notion to anyone who saw how it actually unfolded. More than three years after the end of the Umbrella Movement, the trial proper has yet to begin.
The government only brought charges last year, and it is as yet unclear why it resorted to “inciting public nuisance” charges rarely used in Hong Kong.
The Occupy leaders facing prosecution. Photo: Tommy Cheung via Facebook.
Five of the defendants are from OCLP and HKFS, two of the leading groups of the Umbrella Movement, but strikingly, what both groups have in common is that on the night of September 28, 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 being “incited” 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 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, no officially sanctioned investigation into it has ever been conducted, and no one has been held accountable.
Of the approximately 1,000 people arrested and 220 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.
Tear gas being fired at protesters during Occupy Central. File photo: P H Yang.
Two of the defendants, Tanya Chan and Shiu Ka-chun, are current Legco members. One, Tommy Cheung, has declared his candidacy to fill the Legco seat vacated by the disqualification of Baggio Leung.
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 is awaiting sentencing for contempt of court in relation to the November 26, 2014 police clearance of the Mong Kok occupation during the Umbrella Movement.
Tuesday, January 16
Appeal hearing of Joshua Wong (Demosistō), Nathan Law (Demosistō), and Alex Chow at the Court of Final Appeal over their sentencing to six, eight and seven months in prison respectively.
Wong and Chow were convicted of unlawful assembly and Law of inciting unlawful assembly in relation to the occupation of Civic Square on 26 September 2014, which led to the start of the Umbrella Movement two days later. All three are on bail pending appeal.
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. Because of his eight-month prison sentence, he is ineligible to run again for five years, depriving him of his political rights.
Joshua Wong, Alex Chow and Nathan Law. File photo: In-Media.
Wong is awaiting sentencing for contempt of court in relation to the November 26, 2014 police clearance of the Mong Kok occupation during the Umbrella Movement.
Chow’s prosecution is peculiar. Law was prosecuted for calling on people to enter the closed square on the evening of 26 September. Wong was acquitted of that but convicted for entering the square, though he was almost immediately arrested and taken away.
Chow, on the other hand, was among about 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 be prosecuted. It is hard to avoid the impression that he has been selectively prosecuted because he was a movement leader.
The Court of Final Appeal has announced that the appeals of the 13 protesters imprisoned for unlawful assembly in relation to June 2014 protests at Legco against the Northeast New Territories development plan will be scheduled after Wong, Law and Chow’s January 16, hearing.
Twelve were sentenced to 13 months in prison, one to eight months. Eleven of these protesters have been released on bail pending their appeal. Two are still in prison. The convicts are Raphael Wong, Willis Ho, Billy Chiu, Chan Pak-san, Chow Koot-yin, David Chu, Yim Man-wah, Ivan Lam, Lau Kwok-leung, Kwok Yiu-cheung, Leung Wing-lai, Leung Hiu-yeung, and Wong Kan-yuen.
The 13 Northeast New Territories activists jailed after a government appeal. Photo: League of Social Democrats via Facebook.
In addition, there is the yet-to-be-scheduled sentencing hearing for 16 demonstrators found liable for contempt of court in relation to the 26 November 2014 police clearance of the Mong Kok occupation during the Umbrella Movement. This hearing could very well be held in January as well. It was initially held in December but adjourned before sentencing.
The judge appeared uncertain as to how to proceed, and is perhaps waiting for the outcome of the 16 appeals of prison sentences for unlawful assembly which will be heard at the Court of Final Appeal, or at least of the three appeals of Joshua Wong, Nathan Law, and Alex Chow to be heard on January 16.
Joshua Wong, Lester Shum and Raphael Wong will be sentenced along with 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, and Mak Ying-sheung. Eleven admitted liability for contempt of court, including Joshua Wong and Lester Shum; nine, including Raphael Wong, did not, but all were found liable.
Altogether 20 defendants were tried. Four, Cheung Kai-yin, Ma Po-kwan, Wong Lai-wan, and Yeung Ho-wah were sentenced separately on 28 November 2017 to one-month suspended jail terms and a HK$10,000 fine each. A full account of the Mong Kok clearance.
Bailiffs at the Occupy protest site in Mong Kok. Photo: HKFP/Tom Grundy.
Monday, January 29
Start of trial of Dickson Chau Ka-faat (League of Social Democrats, obstructing and assaulting police officer), Avery Ng (LSD, two counts of inciting disorderly conduct), Devon Cheng Pui-lun (former Lingnan University Student Union president, unlawful assembly), Derek Lam (former core member of Demosistō, inciting disorderly conduct), Ivan Lam (core member of Demosistō, serving 13 months in prison for unlawful assembly, on bail pending appeal, charged with unlawful assembly in this case), Chau Man-wai (LSD, two counts of unlawful assembly), Sammy Ip (unlawful assembly, obstructing police officer), Lo Tak-cheong (unlawful assembly) for various offenses related to the November 6, 2016 protest against the NPCSC Basic Law interpretation on oath-taking which led to the disqualification of six elected pro-democracy Legco members.
These nine are basically being prosecuted because of the location of the protest, the Central Government Liaison Office, the Communist Party’s headquarters in Hong Kong.
This is regarded by the Hong Kong police and government as a highly sensitive area, and police are under strict orders to prevent any kind of disturbance from occurring there. Police tightly regulate 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.
The Liaison Office protest. Photo: HKFP.
Terrible crowd management by police was exacerbated by their overreaction. They arrested Avery Ng. The protest escalated, and several thousand protesters filled the surrounding streets, blocking traffic for hours.
By the middle of the night, police were able to disperse protesters. Only Avery Ng was 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? A full account of the protest.
Other trials have not yet been scheduled and will most likely not begin before the end of January. These include: Avery Ng (League of Social Democrats) for disclosing the name of a person under investigation by the Independent Commission against Corruption; Leung Kwok-hung (Long Hair) (LSD) for contempt of Legco, related to a November 2016 incident in which he grabbed files of a government minister from his desk; and Kenneth Leung, Legco member representing the Accountancy functional constituency and vice-chair of Professional Commons, who is being sued by the former chief executive Leung Chun-ying for defamation in relation to a claim he made that Leung was being investigated by tax authorities abroad.
In addition to the appeals which will be heard in January, three others have yet to be heard. Long Hair and Lau Siu-lai are appealing their High Court disqualification from Legco. Avery Ng is appealing his conviction for assaulting a police officer when he threw a tuna sandwich at former chief executive Leung Chun-ying. It missed and hit the officer instead.
Correction: A previous version of this piece stated that there will be 55 defendants facing trial in January, as opposed to 52.