Should HK’s Occupy leaders appeal? Pushing back against jail sentences would be risky, scholars say

26-Apr-2019 Intellasia | South China Morning Post | 6:00 AM Print This Post

Hong Kong’s imprisoned Occupy protest leaders have room to appeal against their convictions, legal experts said on Thursday, but pushing back against their sentences could be risky.

University of Hong Kong scholar Eric Cheung Tat-ming said there was a high chance the case would eventually reach the city’s top court, regardless of decisions taken by lower appeal courts.

The Court of Final Appeal would step in to deal with cases involving “important legal opinion or those it saw having any real or serious unfairness”, he explained.

“It’s the first time Hong Kong has used a charge of inciting others to cause a public nuisance or conspiring to cause a public nuisance,” Cheung said on a Thursday radio show.

 (South China Morning Post)

(South China Morning Post)

“At least on whether they are guilty, I expect there is a high chance of it reaching the Court of Final Appeal.”

Nine democracy leaders and activists were found guilty earlier this month of a string of public nuisance charges over the mass protests of 2014 that saw key roads blocked for 79 straight days in the name of greater democracy for Hong Kong.

The charges carry a maximum sentence of seven years’ imprisonment, and on Wednesday four of the group academics Benny Tai Yiu-ting, 54, Dr Chan Kin-man, 60, legislator Shiu Ka-chun, 49, as well as League of Social Democrats vice-chair Raphael Wong Ho-ming, 30 were jailed for between eight and 16 months.

Three had their prison terms suspended Reverend Chu Yiu-ming, 75, former lawmaker Lee Wing-tat, 63, and ex-student leader Eason Chung Yiu-wa, 26 on account of their health, age or contributions to society.

Another former student leader, Tommy Cheung Sau-yin, 25, was sentenced to 200 hours of community service.

Lawmaker Tanya Chan, 47, had her sentencing adjourned after her lawyer revealed she was suffering from a life-threatening brain tumour and would need to undergo surgery in two weeks.

Scholar Cheung said the immediate prison terms were harsh and suspended sentences would have been appropriate given the protests were carried out peacefully.

He argued Judge Johnny Chan Jong-herng had wrongly interpreted a previous case in British courts used as a reference. The defendants’ lack of an apology should not have been a factor in determining whether to suspend their jail time, Cheung said.

Alan Leong Kah-kit, senior counsel and chair of the pro-democracy Civic Party, said there was definitely a need to appeal against the guilty verdicts.

“This case will have a huge impact on the future,” he argued.

Leong said the appeal courts should clarify in what circumstances public nuisance charges could be applied, “or else it will have a chilling effect on all future social movements”.

The former lawmaker told a separate radio show that the consequences of the Occupy movement were not a burden solely for its leaders to bear, because many different reasons had spurred the tens of thousands of protesters to take part, ranging from former Hong Kong leader Leung Chun-ying’s oppressive governance strategy to the demonstrators’ failed negotiations with current chief executive Carrie Lam Cheng Yuet-ngor when she was chief secretary.

The legal experts however warned of risks in appealing against the sentences, saying there was a chance the appeal courts would impose even heavier penalties.

“Their lawyers will have to take that risk is there a higher chance of reducing their sentences or will it backfire?” Leong said.

But Cheung could not see any room for a stiffer sentence than the 16 months handed to the two founders Tai and Chan Kin-man.

On the convictions, all but student leaders Cheung and Chung said through their lawyers on Wednesday that appeals would be launched. However, Reverend Chu on Thursday insisted he was still considering the idea. He was handed a 16-month jail term suspended for two years.

Leong also argued the judge had chosen to exaggerate the absence of an apology and place less emphasis on the activists’ motivations for the movement and their desire to protest peacefully.

Judge Chan told West Kowloon Court he acknowledged the demonstrations had not been driven by any want of personal gain, but the leaders had shown no regret despite the extensive and extended inconvenience experienced by “ordinary folks”.

“It is an apology that the members of the public rightly deserve from the defendants, but never received,” the judge said.

Leong and Reverend Chu however said the leaders had apologised back in October 2014 for the upheavals brought by the biggest civil disobedience movement in Hong Kong’s history.

Local Chinese-language media published news reports on October 7 and others in the month saying Tai and Chan Kin-man had offered apologies to nearby residents and shop owners.



Category: Hong Kong

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