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Friday, April 26, 2019, 01:23
Light sentences for 'Occupy' ringleaders lack deterrent effect
By Tony Kwok
Friday, April 26, 2019, 01:23 By Tony Kwok

Among the nine ringleaders found guilty in the 2014 “Occupy Central” trial, only four were jailed for their roles in Hong Kong’s biggest ever civil disobedience movement. On Wednesday, Judge Johnny Chan Jong-herng sentenced two co-founders, academics Benny Tai Yiu-ting and Chan Kin-man, to 16 months’ imprisonment. He also sentenced the legislator Shiu Ka-chun and League of Social Democrats vice-chairman Raphael Wong Ho-ming to eight months’ imprisonment.

Those who escaped immediate jail sentences include Chu Yiu-ming, on the grounds of his old age, 75, poor health and in recognition of his long contribution to society. He was given a 16-month jail sentence suspended for two years. Former legislator Lee Wing-tat also had his eight-month jail sentence suspended for two years due to his years of public service. Former student leaders Tommy Cheung Sau-yin and Eason Chung Yiu-wa were sentenced to 200 hours of community service and an eight-month suspended jail term, having taken into consideration their young age. 

The nine were found guilty of a range of public nuisance charges on April 9 following an 18-day trial.

In his reasons for the sentences, the judge rightly criticized the nine for putting their political demands before the interests of ordinary folks, having brought excessive delays and inconvenience to the city, in terms of the number of carriageways obstructed, the duration of the obstruction, the number of participants and damage caused to the public. He further criticized the group for failing to express any regrets for the inconvenience and suffering they caused. He said, “It is an apology that the members of the public rightly deserved from the defendants, but never received”. Most importantly, the judge dismissed the defendants’ justification of civil disobedience for their movement, noting the excessive damage and inconvenience it had caused.

...many Hong Kong citizens have expressed their disappointment over the leniency of the sentences, with some calling for a signature campaign to urge the secretary for justice to seek a review of them 

Meanwhile, many Hong Kong citizens have expressed their disappointment over the leniency of the sentences, with some calling for a signature campaign to urge the secretary for justice to seek a review of them. Are their disappointments justified?

The maximum sentence under the common law offense of public nuisance is seven years’ imprisonment. According to the basic legal principles of sentencing, the starting point for any sentence should “have regard to the intention of the legislature as indicated in the penalties provided and to measure the case before it against the kind of case capable of attracting the maximum penalty”. Also, “in deciding whether a case falls within the worst type category, courts should not use their imagination to conjure up worst kinds of case”. They must take a practical approach. This can be demonstrated in one past ICAC case, where the court had no hesitation in sentencing the former chief secretary to imprisonment for six-and-a-half years for bribery offenses, when the maximum sentence is seven years, because the court considered it the worst type category.

So should the 79-day occupation fall into the worst type category of public nuisance? There is ample evidence it should. It involved the longest period of civil disturbance with the largest number of participants in the history of Hong Kong. It involved intense violence and serious injuries to many, including 130 police officers with one police sergeant permanently paralyzed. Worst, it resulted in a complete breakdown of the rule of law. The most intolerable scene in my memory was that of the illegal occupiers setting up road blocks and insisting on searching all police vehicles, fire engines and ambulances before they could enter into the illegal occupied area! It created huge social and traffic disruption for the city. It cost massive economic losses estimated at HK$350 billion ($45 billion). Had the judge taken all these factors into consideration, he should have no difficulty coming to the conclusion that the illegal occupation should fall into the worst category of public nuisance. The judge thus should have set the starting point at the maximum penalty of seven years, before awarding discounts from there on. However, the normal discount where the defendants plead guilty and thus avoid a long trial; or had shown remorse, and little likelihood of re-offending are all absent in this case. Hence the discount should be limited and the appropriate sentence should not be too far off the maximum seven years. But in this case, the judge set the starting point at 18 months’ imprisonment for Tai and Chan and gave them two months reduction for their positive good character, bringing the sentence down to 16 months. Would such a starting point be acceptable to law-abiding citizens of Hong Kong who had suffered immensely during the occupation?

Personally, I agree with the court in imposing a relatively lenient sentence on the two young offenders. They were students at the time and were actually the victims of brainwashing by the movement founders. They, therefore, deserve a chance at rehabilitation. However, there is no reason to be lenient with Lee Wing-tat. He is a seasoned legislator and should know better about the importance of the rule of law. The public nuisance that he incited the people present at Harcourt Road to commit was very serious, as Harcourt Road was a major thoroughfare connecting the districts of Wan Chai, Admiralty and Central. He also showed no remorse; indeed right after the court proceedings, he immediately incited the public to continue to fight for his so-called democracy.

One observation about the trial is that all defendants engaged top lawyers for their defense. Considering the trial duration of 18 days, the legal fees must be huge. Apart from those who received legal aid, it seems the legal expense incurred would be well beyond the means of the other defendants. So who is financing them? Probably the same people who were the real masterminds of the illegal occupation. The anger of Hong Kong people would not be placated until they are brought to justice.

The opposition parties are now trying to organize massive public protests against the amendment to the Fugitive Offenders Ordinance. They are using this trial to incite the public to join the protest, by branding the defendants martyrs. It is hoped the relatively lenient sentences meted out at the trial would not encourage these protestors in the coming protest march into believing that breaking the law is a heroic act and has no serious consequences!

The author is an honorary fellow and adjunct professor of HKU Space, council member of the Chinese Association of Hong Kong and Macao Studies, and former deputy commissioner of ICAC.

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