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Friday, April 23, 2021, 01:27
Crime and punishment: Just outcomes for lawbreakers on unauthorized marches
By Grenville Cross
Friday, April 23, 2021, 01:27 By Grenville Cross

On April 16, nine high-profile defendants, who had been convicted of involvement in an unauthorized assembly on August 18, 2019, were sentenced to terms of imprisonment which ranged from 8 to 18 months (DCC 536/2000). Three of them, however, Martin Lee Chu-ming, Albert Ho Chun-yan and Margaret Ng Ngoi-yee, had their sentences suspended. The defendants, two of whom pleaded guilty, were convicted of either organizing an unauthorized assembly, or participating in one, and, in some instances, of both. The offenses occurred when the defendants, following an authorized assembly involving 300,000 people in Victoria Park, embarked upon an unauthorized march from Causeway Bay to Central, ignoring a police objection.

In convicting the defendants, Judge Amanda Woodcock brushed aside their challenge to the legitimacy of the charges, explaining that while the Basic Law guarantees freedom of assembly and freedom of expression, these rights “are not absolute”. Indeed, in 2005, as she noted, the Hong Kong Court of Final Appeal had upheld the constitutionality of the law which criminalizes unauthorized assemblies and establishes a notification scheme (FACC 1/2005), and the defendants had no reasonable excuse for having violated it. The march the defendants engaged in had, said the judge, caused serious traffic disruption, and was of a size that “posed an inherent latent risk of possible violence”.

Two of the defendants, Jimmy Lai Chee-ying and Lee Cheuk-yan, together with Yeung Sum, also pleaded guilty to participating in another unauthorized march, in Wan Chai on August 31 2019 (DCCC 537/2020). On this occasion, over 2,000 people ignored a police ban and marched from Southorn Playground in Wan Chai to St John’s Cathedral, in Central. In sentencing, Woodcock noted that “influential people can draw a crowd”, and that “the chances were high of violence erupting”. But as this offense was less serious than the earlier one, the sentences of imprisonment were markedly lower, ranging from 6 to 8 months’ imprisonment.

Under the Public Order Ordinance (Cap.245), unauthorized assemblies are treated seriously, and the maximum sentence is 5 years’ imprisonment (Sect.17A). Although some people have complained that Woodcock’s sentences were too tough, the Court of Appeal has made clear that “the first factor to which any sentencing court should in this context have regard is the maximum penalty available” (CACC 335/2010). In other words, by the maximum sentence it has prescribed, the legislature has indicated its view of the seriousness of the offense, and the sentences the courts impose should “take their color” from this. The judge’s sentences, therefore, were well down the scale, having regard to the maximum available to her.

 Although some people have complained that Woodcock’s sentences were too tough, the Court of Appeal has made clear that “the first factor to which any sentencing court should in this context have regard is the maximum penalty available” (CACC 335/2010). In other words, by the maximum sentence it has prescribed, the legislature has indicated its view of the seriousness of the offense, and the sentences the courts impose should “take their color” from this. The judge’s sentences, therefore, were well down the scale, having regard to the maximum available to her

There may be cogent reasons why a particular assembly cannot be authorized by the police, as where, for example, violence is expected to result, or public safety will likely be endangered, or where traffic chaos is unavoidable. This is recognized around the world, and in the United States, for example, restrictions on public gatherings in major cities are common. In New York City, police permission is required to conduct a march in a public street, to hold an event in a park with more than 20 people, or to use amplified sounds on public property. In light of this, the intervention of the US Consul General, Hanscom Smith, who claimed that “it was enormously troubling to have this case of people who were convicted of peaceful assembly”, was rank hypocrisy of the worst type, albeit now very familiar.

In Hong Kong, nobody is above the law, as Smith knows, and the convictions of the ten defendants send out an unequivocal message that criminal justice applies equally to everybody, including the high and mighty. Although the defendants included the rich, the eminent and the well-connected, this, fortunately, has provided them with no shield against the sword of justice. While many of them have powerful friends in foreign capitals, including the former governor, Chris Patten, who wailed pathetically about these “champions of liberty and democracy” having been placed “in Beijing’s vengeful sights”, this has not availed them at all, and the rule of law has triumphed. Indeed, as the great English jurist, Lord Denning, once memorably observed, “be you ever so high, the law is above you”, and, by her carefully reasoned judgment, Woodcock has honored this mighty principle, and the only regret is that Patten has sought to trash it.

Some people have queried why four of the defendants, Martin Lee, Albert Ho, Margaret Ng and Yeung Sum, were given suspended sentences of imprisonment, and the principles applicable are not always appreciated. In respect of many offenses, including unauthorized assembly, a court, if a sentence of not more than two years’ imprisonment is imposed, may order that it be suspended for between one and three years. It will, however, be activated, in all likelihood, if the offender, during that period, commits another offense which is punishable with imprisonment. It has, therefore, been likened to a Sword of Damocles, with the offender being given a second chance, albeit with the threat of imprisonment hanging over his or her head if there is any further criminality.

In deciding whether to order suspension, the courts have regard to what the Court of Appeal has called “all the circumstances of the commission of that offense and that of the defendant” (CAAR 1/2015). In one case, for example, an offender received a suspended sentence of imprisonment “in the interest of justice” on account of her clear record, physical disability and family difficulties (HCMA 294/2016). If, therefore, an offender can rely on potent mitigating factors, this may persuade the court to suspend the term of imprisonment which would otherwise have been appropriate.

In the case of Yeung Sum, for example, the judge decided to suspend his sentence of imprisonment of 8 months, for a period of 12 months. This was because of the powerful mitigation upon which he was able to rely. He was 72 years old, of good character, had been a legislator for many years, and had shown “dedication to education and social work, especially at the grassroots level”. He had, moreover, been awarded the Silver Bauhinia Star (SBS) by the HKSAR, which showed that he was “recognized for either taking a leading role in public affairs or voluntary work over a long period of time for the good of Hong Kong.” The same type of considerations would have influenced Woodcock when she suspended Martin Lee’s sentence of 11 months’ imprisonment, and Margaret Ng’s and Albert Ho’s sentences, each of 12 months’ imprisonment.

Under the Criminal Procedure Ordinance (Cap.221), a court which suspends a sentence of imprisonment “may impose such conditions as it thinks fit” (Sect.109B). Although this is broad, any conditions attached to the suspension should be reasonable, and the power is not unlimited. It would, for example, be unreasonable to attach a condition to the suspended sentences of Lee, Ho, Ng or Yeung, that they should not exercise their right to freedom of assembly, given that this right is constitutionally guaranteed under the Basic Law. In practice, it is very rare these days for the courts to attach conditions when they suspend sentences of imprisonment, and no conditions were attached, for example, to Yeung’s suspended sentence of 8 months’ imprisonment. 

When the offenders were sentenced, diplomats from Canada, France, Germany, the Netherlands, Sweden, the United States and the European Union were among those observing the proceedings. It is to be hoped that the reports they filed to their superiors accurately reflected the fairness of the trial, and the care the judge devoted to her reasons for both conviction and sentence. If so, they have, not surprisingly, been ignored, as their political masters have agendas of their own to pursue.

The US Secretary of State, Antony Blinken, for example, without having studied the evidence, made the extraordinary claim that the charges were politically motivated, and demanded the release of “those detained or imprisoned for exercising their fundamental freedoms”, which was a crude assault on the rule of law. Whatever the position may be in the US, the judiciary in Hong Kong is fiercely independent, conducts trials fairly on the basis of the evidence and the law, and takes orders from nobody, let alone the likes of Blinken. Hong Kong, fortunately, is blessed with one of the finest judiciaries in the Asia-Pacific region, and can be trusted never to buckle to political pressure, and long may this continue. 

The author is a senior counsel, law professor and criminal justice analyst, and was previously the director of public prosecutions of the Hong Kong SAR.

The views do not necessarily reflect those of China Daily.

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