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Thursday, October 31, 2019, 10:14
Govt should appeal light sentence imposed for desecrating national flag
By Tony Kwok
Thursday, October 31, 2019, 10:14 By Tony Kwok

Tony Kwok says that requiring the defendant only to put in 200 hours of community service is not in line with crime's seriousness, nor a deterrent

We can all recall the uproar in Hong Kong and the Chinese mainland when, in August, rioters took down the national flag outside Ocean Terminal in Tsim Sha Tsui and threw it into the harbor. This triggered a massive outcry on the mainland and harsh condemnation from the Hong Kong and Macao Affairs Office of the State Council. It demanded that the culprits be found and prosecuted, and the severest deterrent sentence be meted out for such an egregious affront to the national flag. Leung Chun-ying, former chief executive of Hong Kong, promptly offered a reward of HK$1 million (US$128,000) for the arrest and successful prosecution of the culprit.

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Amid a spate of incidents involving the desecration of China's national flag by rioters over the last four months, it is gratifying to see the first such case concluded with a conviction. But it was also most disturbing to see the prescribed punishment no more than a slap on the wrist for denigrating our national dignity! On Tuesday, defendant Law Man-chung pleaded guilty to one count of desecrating the Chinese national flag. He was participating in an anti-government protest in Sha Tin, and he was seen to have thrown the flag into the air and then repeatedly trampling on it while chanting anti-China slogans. He followed that by throwing the flag into a garbage can before dumping it into the pool at Sha Tin Park.

His actions belied his claim that he was merely acting on the spur of the moment. And yet Magistrate Li Chiho saw it fit to sentence him to merely 200 hours of community service, while ironically acknowledging that it was indeed a serious offense! What a shocking example of a mismatch between one's words and deeds.

It is impossible to understand the magistrate's logic as this offense carries a maximum sentence of three years' imprisonment

It is impossible to understand the magistrate's logic as this offense carries a maximum sentence of three years' imprisonment. If the magistrate considered it a serious offense, he should take the three years as a starting point and give allowance for any mitigating factors. Reducing it to a noncustodial sentence is a travesty of the law.

The magistrate claimed that there was no case precedent for him to follow. If he had done his homework, he should be aware of a case involving a mainland tourist who was sentenced to four weeks' imprisonment on Aug 19 for defacing the wall of the US Consulate General in Hong Kong, despite his claim that he was merely trying to show his displeasure with foreign meddling in the city's riots by spray-painting a rather harmless slogan, "China will win," on the front gate of the consulate.

Surely if the magistrate is Chinese, he should be able to distinguish the degree of severity between these two cases!

Then there was an old case where an anti-government activist, Ku Siuyin, defaced the Hong Kong bauhinia flag. He was sentenced to seven days’ imprisonment. Surely desecrating the national flag is a lot more serious than defacing the SAR flag. Hence the custodial sentence should be much higher.

It was noted that the same magistrate previously acquitted a notorious anti-government activist, Leung Kwok-hung, for common assault last year. One of his reasons for acquittal was that despite clear video evidence showing Leung raising his leg to kick at the direction of the victim, there was no footage showing the actual impact on the victim's body, despite medical proof that the victim had suffered a leg injury. The magistrate then declared that there is a benefit of the doubt!

One could not help but wonder whether the magistrate has any strong political views or affiliation, or whether he might have joined a High Court judge in signing a petition against the Fugitive Offenders Ordinance, or participated in any recent protests, or stated his political views on social media. If so, there could be a conflict of interest, and he should recuse himself from related cases. If he had failed to declare any conflict of interest, he is liable to prosecution for the common-law offense of "misconduct in public office".

Quite clearly, the sentence is manifestly inadequate and can hardly serve as a deterrent for the current violent anti-China rioters. So far, nine cases of desecrating the national flag have occurred. The Department of Justice must promptly announce its intention to lodge a review of the sentence to give a clear warning on the severity of the offense.

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Perhaps some additional punishment should be considered. If the defendant is so anti-China, he does not deserve to be issued with the Chinese (HKSAR) passport. Even if issued, the passport should be endorsed with his conviction record and stating clearly that he will not be entitled to any diplomatic protection or assistance from the Chinese government. He should also be barred from the mainland and disqualified to apply for any civil service jobs.

When we look at the disproportionate leniency in this case, together with a recent case in which a High Court judge reduced the magistrate's order for detention to allow a rioter found to have possession of gasoline bombs to be released on bail, we are witnessing a very worrying trend of "police arrest, judges release"; this is a judicial nightmare. It will undoubtedly encourage the rioters to continue with their vandalism and violence!

The author was the first local head of operations and deputy commissioner of ICAC, and currently an international anti-corruption consultant in 26 countries.

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