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A victory for the rule of law

In quashing prison terms for three student activists while delivering a strong message about future protests that turn violent, the Court of Final Appeal has made an emphatic statement regarding judicial independence, writes Boase Cohen & Collins Senior Partner Colin Cohen.

Hong Kong, 13 February 2018: Five months ago, following a high-profile Court of Appeal judgment that brought the jailing of three young pro-democracy activists, I wrote a blog offering a robust defence of Hong Kong’s Judiciary regarding its independence and freedom of decision-making.

“Was there political interference in the arrest, prosecution, trial and imprisonment of Alex Chow, Nathan Law and Joshua Wong?” I asked at the time. “A detached, dispassionate review of their case leads me to conclude the answer is a resounding no.” I ended the article by saying I was “convinced” we still had an independent Judiciary.

Last week’s Court of Final Appeal judgment, which quashed the trio’s jail terms but upheld strict sentencing guidelines for future unlawful protests, vindicates those statements, I believe. Clearly, we do have strong, independent and transparent rule of law in Hong Kong.

First, a brief summary of this long-running case. Chow, Law and Wong, all well-known political activists, were arrested on 26 September 2014 after a pro-democracy protest outside the Tamar Central Government Offices turned violent. Almost a year later they were tried at Eastern Court, where Wong and Chow were found guilty of unlawful assembly and Law guilty of inciting others to take part in an unlawful assembly. The magistrate sentenced Wong and Law to 80 hours and 120 hours of community service respectively while Chow received a three-week prison sentence suspended for one year. In doing so, the magistrate took into account the fact that the trio had no previous convictions, were active in student democratic groups and were passionate in their political ideals.

The then Secretary for Justice, Rimsky Yuen, felt these sentences were inadequate and, after a lengthy legal process, was granted leave to appeal. The Court of Appeal delivered its judgment last August. The appeal judges ruled that the trial magistrate had given too much weight to the defendants’ motives, had overlooked the fact that the incident involved unlawful assembly on a large scale with a serious risk of violence, and had failed to consider that the sentences should have had a deterrent element. The defendants were given immediate custodial sentences – six months for Wong, seven months for Chow and eight months for Law.

The trio then won leave to take their case to the Court of Final Appeal (they were subsequently granted bail) where, in a hearing last month, their lawyers argued the Court of Appeal had exceeded its powers and, in the case of Wong, had ignored the fact that he was a minor at the time of the offence.

Last week, the CFA judges delivered, in my opinion, a very carefully thought out and reasoned judgment. In doing so, they addressed three key issues.

First, they concluded that the magistrate had not erred, that she had correctly taken into account all the facts of the case and that the sentences she imposed were not “manifestly inadequate” as the Court of Appeal had ruled. The CFA judgment states: “… the range of sentences for unlawful assembly includes the imposition of a community service order and, at the time the magistrate was sentencing the appellants, there was no appellate court guidance that required an immediate custodial sentence for a case of this nature.” It noted that a community service order was a sentence frequently passed in respect of unlawful assemblies.

The CFA judges concluded the Court of Appeal should not even have allowed the Secretary for Justice’s application for the sentences to be reviewed. Once it had done so, it was wrong to apply its tougher sentencing guidelines retrospectively. Further, with regard to Wong’s youth, it had erred in not considering other sentencing options.


The Court of Final Appeal – Hong Kong’s highest court.

The CFA judges could have left it there, but they chose to take it further, which brings us to the second and third issues. The second issue concerns civil disobedience and the exercise of constitutional rights as a motive – and here the judges are unequivocal: civil disobedience is understood to be peaceful and non-violent, if you cross the line into violence, you can expect to be punished. Civil disobedience is not a defence.

They state: “Where, therefore, in furtherance of an ostensibly peaceful demonstration, a protester commits an act infringing the criminal law which involves violence and is therefore not peaceful and non-violent, a plea for leniency at the stage of sentencing on the ground of civil disobedience will carry little (if any) weight since by definition that act is not one of civil disobedience.”

The third issue centres on the Court of Appeal’s guidance for future cases – it said courts needed to be much stricter in cases of unlawful assembly that involved disorder and any degree of violence – and here, again, the message from the CFA judges is loud and clear. While distancing themselves from Court of Appeal Vice President Yeung’s strong comments about “an unhealthy wind … blowing in Hong Kong”, they have resoundingly endorsed the lower court’s hardened stance.

The CFA judgment states: “… it was right for the Court of Appeal to send the message that unlawful assemblies involving violence, even the relatively low degree of violence that occurred in this case, will not be condoned and may justifiably attract sentences of immediate imprisonment in the future”.

All matters considered, it is a bittersweet ruling for both sides in the pro-democracy debate. The Government saw the jail terms quashed but welcomed the CFA judges’ disclaimer that they had only considered the applicable legal principles in what was a politically charged case. The defendants, while allowed to go free, know that future transgressors will not be so fortunate. Wong, indeed, described it as a “sugar-coated harsh punishment”.

I wrote last September that, of course, feelings are running high regarding democracy in our city. There are ideals at stake and many people, myself included, are sympathetic to the cause. I also said that Wong, Law and Chow were guilty of serious offences. The CFA judges, while quashing the trio’s prison terms, did not disagree.

Moving forward, the Court of Final Appeal has sent a robust and unequivocal message that disorder and violence – whether or not politically motivated – will not be tolerated by our courts.