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Tuesday, April 16, 2019, 00:08
Things to consider before sentencing the 'Occupy' leaders
By Tony Kwok
Tuesday, April 16, 2019, 00:08 By Tony Kwok

On April 9, much to the delight of most Hong Kong residents, the nine ring leaders of the illegal “Occupy Central” movement were all convicted by a District Court judge for offenses relating to the illegal occupation and protests. The case has been adjourned until April 24 for sentencing.

In the interim, one can see clearly that the opposition parties and activists are mobilizing an intense propaganda campaign to press the judge for leniency. Certain local media organizations, including the government-funded RTHK, have devoted an inordinate amount of time covering their activities, portraying these defendants as heroes, even martyrs, in their noble attempt to “using love and peace to pursue democracy”. Actually, some of them now tried to court public sympathy by pleading tearfully for mitigation in public, totally at odds with their original pledge to accept graciously any jail sentence! The opposition parties are now launching a “wear yellow” campaign and as expected, they conspired with their overseas supporters, such as former British governor Chris Patten, to pressure the court!

One weakness in our judicial proceedings is that the judge normally only hears the defense’s mitigation pleas for leniency, without the prosecution’s input on the severity of the sentences to be meted out. This is contrary to the common law spirit of the adversarial principle where the judge should hear both sides of the argument before making a decision. In many common law countries, such as the United States, this has been rectified; the prosecution is entitled to recommend the actual sentence along with their justification for it so the court can consider it. Sadly the Hong Kong judiciary refrains from such a fair practice out of conservatism and has not adapted itself to such a sensible change. This is most unfair to the judge as he or she can be deprived of informed input.

It was estimated by Professor Francis Lui of the University of Science and Technology that the economic losses caused by the 79-day “Occupy Central” could amount to HK$350 billion! Considering a simple fraud case involving financial losses of over HK$1 million, the normal punitive sentence is five years’ imprisonment, which would be a good sentencing yardstick

But consider for a moment what the prosecution would have said if it was allowed to do so. Very likely it would cover the following points. Firstly, they would strongly rebut the defense’s claim of “love and peace” as the hallmark of its illegal “Occupy Central” movement because the reality is that it was far from peaceful. The movement was actually marred by intense violence, serious injuries and significant social and economic disruption. At least 130 police officers were injured, with one police sergeant permanently paralyzed. Many protestors were prosecuted for violence related offenses like assaulting and obstructing police officers. One need only listen to eyewitness accounts of frontline police officers to realize how many had their legs and knees bruised by the violent kicking of protesters.

In the trial of the 2011 New York “Occupy Wall Street” which claimed to protest against economic inequality, it is interesting to note the public prosecutor’s submission for sentencing one of the instigators. She said, “the defendant tried to use her trial as a grandstand for her political opinions. She seeks to be perceived as a martyr and to gain fame from her involvement in this case.” The prosecutor recommended immediate imprisonment of three months followed by five years of probation, which was accepted by the court. One couldn’t help feeling that this defense strategy is being copied by the “Occupy Central” protesters.

Secondly the illegal movement caused huge disruption to Hong Kong economic activities, including loss of business which resulted from loss in income for both employers as well as employees. Again, in the US Department of Homeland Security report describing the “Occupy Wall Street” movement, it stated “mass gatherings associated with public protest movements can have disruptive effects on transportation, commercial and government services”. Clearly the defendants should have known in advance the inevitable adverse consequences of their actions. It was estimated by Professor Francis Lui of the University of Science and Technology that the economic losses caused by the 79-day “Occupy Central” could amount to HK$350 billion! Considering a simple fraud case involving financial losses of over HK$1 million, the normal punitive sentence is five years’ imprisonment, which would be a good sentencing yardstick.

Thirdly, the harmful long-term effects on the minds of young people and students. Many were swept up in the excitement romanticized by these defendants and pro-opposition media. Some of them had abandoned their studies to join the protests. Some students brought the disrespect for rules and violence they learned back to their university campuses and schools. Those young people jailed for their impetuous actions had practically forfeited their future prospects.

Elementary principles of justice call for those who are in a position of knowledge and authority in a malevolent scheme should receive the harshest punishment on the ground that “they should have known better.” Hence, Benny Tai Yiu-ting, who is a law professor in University of Hong Kong teaching our young students the essence of the rule of law, clearly deserves the longest prison sentence. The same should apply to the two legislators and one former legislator active in the movement. On the other hand, sympathy can be given to the two young student leaders as they had fallen prey to the demagoguery and brainwashing of the movement’s founders who never brought their own children to actively support their movement. 

Furthermore, the judge should show leniency only if there is genuine remorse on the part of the defendants and there is little likelihood of re-offending. The defendants had said from the beginning that they are prepared to be imprisoned in pursuit of their “holy cause”. But when they were prosecuted, they all pleaded not guilty and fought the charges vigorously, wasting valuable court time. Clearly the defendants are unrepentant as they had openly declared that they had no regrets about what they did. And what about the likelihood of re-offending? Just recently, in the debate on amendment to the Fugitive Offenders Ordinance, opposition legislator Claudia Mo Man-ching openly incited the public to surround the Legislative Council building during the debate. Such provocative behavior could easily trigger another “Occupy Central”. So it is all but incumbent on the judge to impose an effective deterrent sentence.

It is hoped that the judge would take due consideration of all this in handing down his sentences on April 24. The court should uphold the principle that justice must be seen to be done and those who breach the law deserve a deterrent sentence.

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

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