Pro-democracy activists freed by HK’s highest court on grounds they suffered a grave injustice after jailing for ‘extremely violent’ protest

08-Sep-2018 Intellasia | South China Morning Post | 6:00 AM Print This Post

Thirteen pro-democracy activists jailed over an “extremely violent” 2014 protest against development in the New Territories were freed on Friday, after Hong Kong’s top court granted their appeal on the grounds of grave injustice.

Chief Justice Geoffrey Ma Tao-li announced the Court of Final Appeal’s decision immediately after defence lawyers had completed arguments on whether the defendants had been subject to “substantial and grave injustice”, when the lower appellate court replaced their community service orders with jail terms of up to 13 months.

“The appeal is allowed, the sentences are set aside,” Ma said. The court will hand down its detailed reasons for judgment at a later date.

Loud cheers and applause erupted as soon as the activists emerged from the dock to greet their families and friends, who filled the courtroom and its side chamber to watch.

All 13 men and women had been convicted of unlawful assembly, punishable by three years in prison, for charging at the Legco complex in a violent manner, with the intent to enter the building on June 13, 2014.

At the time of the offence, lawmakers were debating a controversial government development project in the northeast New Territories.

Damage to the facilities cost more than HK$400,000 in repairs, and a security guard needed 85 days of sick leave in the aftermath.

Trial magistrate Jason Wan Siu-ming found the group guilty in February 2016, and sentenced the activists to between 120 and 150 hours of community service.

But in August last year the Court of Appeal sided with the government in a sentencing review, and imposed custodial terms, after finding jail was the only option.

One of the activists, League of Social Democrats vice-chair Raphael Wong Ho-ming, said the activists were happy and excited by the top court’s “reasonable judgment”.

However, he disagreed with Ma’s description of the protest as “extremely violent”, and countered: “We call it force, not violence, because we have no intention, we have no intention at all, to hurt anybody.”

Wong also maintained their opposition to developing the northeast New Territories, but acknowledged there was a need to revise their future strategy.

“We have to be well organised and well disciplined in the [social] movement later on,” Wong said.

Beside him stood activist Ho Kit-wang, who later cried outside court.

The activists had served 100 to 134 days in jail, on top of serving their earlier community service.

Their case is closely linked with the bittersweet court victory won by student leaders Joshua Wong Chi-fung, Nathan Law Kwun-chung and Alex Chow Yong-kang last month. The Occupy trio’s sentences were similarly strengthened by the Court of Appeal following the government’s successful review of their initial non-custodial sentences last August.

The Court of Final Appeal quashed the trio’s jail terms and endorsed the lower appellate court’s new sentencing guidelines that push for heavier punishments in cases of violent unlawful assemblies, but ruled that it should not be applied retrospectively.

In a similar vein, Ma on Friday observed that the Court of Appeal had applied its new guidelines in the present case and questioned how the judges had arrived at their sentence.

“It’s difficult to see how the court can get to 15 months as a starting point [of sentence],” Ma said.

“I accept that,” the director of public prosecutions David Leung Cheuk-yin SC replied.

But prosecutors maintained that it was right for the Court of Appeal to hand out jail terms because they were “the only appropriate sentence” given the aggravating features that included the protesters storming into the Legislative Council while it was in session.

Defence counsel Martin Lee Chu-ming SC disagreed, arguing that community service was the right sentence given the level of violence.

His views were echoed by defence counsel Philip Dykes SC.

“A lenient sentence is not necessarily inadequate,” Dykes said. “We say the sentences here are lenient but not wrong in principle or manifestly inadequate.”

But Lee’s comments prompted Ma to ask: “Are you saying this was not a violent event? Are you trying to minimise the violence?”

“There is a degree of violence,” Lee replied.

Defence counsel Hectar Pun SC said the case was different because it involved a peaceful protest marred by “sporadic violence” triggered by the news of Legco’s vote.

He also argued that magistrate Wan had considered imprisonment but felt a community service order “duly reflected the seriousness of the offence and fell within the reasonable range of sentence”.

“The appropriate sentence has been determined by the learned magistrate,” Pun said.

Alongside Wong and Ho, the other activists released were: Leung Hiu-yeung, Lau Kwok-leung, Leung Wing-lai, Ivan Lam Long-yin, Chu Wai-chung, Wong Kan-yuen, Kole Chow Koot-yin, Yim Man-wa, Billy Chiu Hin-chung, Kwok Yiu-cheong, and Chan Pak-shan.


Category: Hong Kong

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