Joshua Wong and other Occupy leaders allowed to appeal against jail terms

08-Nov-2017 Intellasia | South China Morning Post | 6:00 AM Print This Post

Three jailed Occupy student leaders were given the go-ahead by Hong Kong’s top court on Tuesday to appeal against their sentence for unlawful assembly.

The Court of Final Appeal allowed Joshua Wong Chi-fung, 21, and Nathan Law Kwun-chung, 24 whom it earlier granted bail as well as Alex Chow Yong-kang, 27, to lodge their appeal after their original non-custodial sentences were replaced by jail terms amounting to months.

The appeal will be heard on January 16 next year. Chow was also granted bail.

Their lawyers will argue before top justices as to why the new jail terms are inappropriate.

In a show of solidarity, the trio stood shoulder-to-shoulder outside court, three hours after hearing the time it took for Chow’s bail to be processed.

“There is the same familiar feeling. We are still ourselves, persisting on our own beliefs,” Law said, adding it was the first time the men had reunited since they were jailed on August 17.

Chow turned the focus on the city’s justice minister, Rimsky Yuen, whose justice department led the drive to overturn the original sentence in favour of jail time.

“I think I have to thank Rimsky Yuen, who provided a platform to give us, the people of Hong Kong, to not just let justice be done, but also be seen,” he said.

If it was not for him, he said, they would not have set sail “on this magical journey”.

He added he would be spending his first lunch outside of prison discussing prisoners’ affairs with Wong and Chow.

Wong expressed gratitude towards the decision to allow an appeal, and said the statement issued earlier by David Kaye, UN special rapporteur on the right to freedom of opinion and expression, and Michel Forst, UN special rapporteur on the situation of human rights defenders, showed that the world had been paying attention to their case.

Occupy leaders Joshua Wong and Nathan Law freed on bail and raring to continue democracy fight

The appeal is expected to have implications for the dynamic between criminal justice and constitutional rights in Hong Kong, as part of it will concern to what extent a protester, if convicted of a crime, can have his motive of civil disobedience taken into consideration when he is sentenced.

Chief Justice Geoffrey Ma Tao-li said permission was granted on the basis that the appeal concerned issues of “substantial and grave injustice” and “points of law of public importance”.

He said he and his fellow justices would like to hear the lawyers’ views on four issues, one of which in particular concerned civil disobedience and constitutional rights.

“To what extent a sentencing court shall take into account the motive of which they were convicted of, in particular in the case when the act is committed as a civil disobedience and in the act of exercising constitutional rights?” Ma said.

After the Court of Appeal ruled to jail the trio, critics and legal experts had expressed concerns on how much the appellate court, which normally addressed legal issues, was allowed to alter the factual findings of a lower court.

Judiciary in the dock: jailing of student activists opens door to debate

Ma said the top justices would like to hear arguments on the extent to which the appeals court was allowed to “reverse, modify, substitute and supplement” factual findings from a lower court.

And given that the appeals court had taken the opportunity to issue a new sentencing guideline with the trio, Ma added, another question was whether it was right for the three men to be sentenced according that.

He said his remaining point concerned whether it was appropriate for the Court of Appeal to sentence Wong, who was 20 at the time, without calling for reports to study other sentencing options, such as the training centre.

The trio were convicted last year over their roles at a protest in the lead-up to the Occupy movement of 2014. Wong and Law were originally given community service orders, and Chow a suspended jail sentence.

Prosecutors were unhappy with the non-custodial sentences and asked for a review of the penalties. This was granted by the Court of Appeal in August.

Justice of Appeal Jeremy Poon Shiu-chor wrote that when an unlawful assembly involved violence, “the prime consideration for sentence is to punish those offenders, so as to warn others”.

In these cases, the offender’s personal background and whether they had a noble motive and reason were no longer powerful mitigating factors, he said, disagreeing with the lower court magistrate who had taken these points into consideration.

Wong, Chow and Law were sentenced to six, seven and eight months in jail, respectively.

Speaking outside court before the hearing, Law said the case was important in that it determined whether in the court’s eyes, the protest leading up to the Occupy sit-ins was a peaceful one.

“Our legal opinion is that we are optimistic that we will get [permission to appeal]. But we have also prepared for the worst,” he said.

Hours before, experts from the United Nations’ human rights watchdog weighed in on the case, putting pressure on the city’s top court to lift the jail sentences on grounds of international human rights law.


Category: Hong Kong

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