The jailing of three student activists continues to stir anger in Hong Kong and overseas, but critics are letting emotions obscure the facts in what amounted to a serious case of law-breaking, writes Boase Cohen & Collins Senior Partner Colin Cohen.

Hong Kong, 13 September 2017: The fallout from the jailing of three young pro-democracy activists last month continues. The latest news is that two of them, Alex Chow and Nathan Law, have lodged applications for leave to appeal against their sentences. We await with interest to see whether the third defendant, Joshua Wong, will follow suit.

While the ongoing appeals mean we should be careful about what we say regarding this high-profile case, of more immediate concern are some serious allegations that have been levelled at Hong Kong’s Judiciary regarding its independence and freedom of decision-making. No matter what stage has been reached in the judicial process, these cannot go unanswered.

First, a brief recap of the facts – and I stress the word facts – of the 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. They were alleged to have been key participants in an illegal storming of a closed-off area commonly known as “Civic Square” by several hundred protesters. This incident triggered the Occupy pro-democracy sit-ins that disrupted the city for almost three months.

The defendants were tried at Eastern Court and, on 15 August 2015, after a fair and open hearing, the magistrate found Wong and Chow guilty of unlawful assembly and Law guilty of inciting others to take part in an unlawful assembly. The magistrate imposed sentences of 80 hours of community service for Wong and Chow and 120 hours of community service for Law. In deciding these sentences, 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 Secretary for Justice, Rimsky Yuen, felt these sentences were inadequate and, in accordance with the law, applied for a review within 21 days of the sentences being handed down. It should be noted that a review can only be lodged if the sentence “is not authorised by law, is wrong in principle or is manifestly excessive or manifestly inadequate”. The first review took place before the same magistrate on 21 September 2016 but was dismissed. The Secretary for Justice, as he was fully entitled to do, then applied for an appeal to the Court of Appeal on 13 October 2016. He was granted leave to appeal on 16 May this year and the application was heard on 9 August. It should be stressed that the delay in hearing this appeal was because the defendants had lodged appeals against conviction, a process they subsequently abandoned.

The Court of Appeal delivered its judgment on 17 August. The appeal judges ruled that the trial magistrate had erred in giving 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 original community service orders were quashed and the defendants were given immediate custodial sentences – six months for Wong, seven months for Chow and eight months for Law.

In delivering the judgment, one of the three judges, Court of Appeal Vice President Wally Yeung, commented: “In recent years, an unhealthy wind has been blowing in Hong Kong. Some people, on the pretext of pursuing their ideals or freely exercising their rights conferred by law, have acted wantonly in an unlawful manner. Certain people, including individuals of learning, advocate ‘achieving justice by violating the law’ and, under this slogan, they encourage others to break the law. These people openly flout the law.”

These remarks were described as emotional in some quarters, I would label them robust. Certainly they were seized upon by supporters of the trio and critics of the sentencing as “evidence” of a political judgment. But, putting such language aside, we should consider the bare facts. First, the defendants were given full judicial process in fair and open hearings. Second, they were convicted of serious offences. Third, the Secretary for Justice acted completely in accordance with the law in seeking a sentencing review. Given the nature of these offences, there is no doubt at all, in my opinion, that the magistrate was much too lenient and that a custodial sentence for each defendant was merited.

It should be stressed, as well, that there are plenty of precedents for the prosecution – that is, the Government – to seek a sentencing review. I can recall two particularly dramatic cases in which I was involved. The first was pre-1997 and was part of the infamous BMFL financial scandal. My client pleaded guilty to various counts of corruption and conspiracy to defraud and was sentenced to four and half years in prison. This was reviewed by the Court of Appeal which increased his term to 10 years. In the second case, I had a construction industry client who was convicted of so-called “short piling” – that is, failing to pile building foundations to the designated depth. He was sentenced to six months in prison but the Court of Appeal ruled it had been a serious breach of public safety and gave him five years. He had already served his initial six months and been released, so the judgment sent him back inside. These were two cases where the Court of Appeal ruled that the original sentencing was dramatically wrong.

If I have a criticism of the Judiciary in the case of Law, Chow and Wong, it is that it published the judgment in Chinese first and then took a full two weeks to release the English version. This delay, I am sure, was partly responsible for the widespread condemnation of the custodial sentences in the foreign media. If they had been able to access the English judgment immediately, I believe the reaction would have been more moderate.

That minor consideration aside, I do believe there was a rush to condemn from groups and individuals who did not possess enough knowledge of the facts of the case nor the manner in which it had been conducted. And on this point, I really do feel that the letter written to the Financial Times by our former Governor, Lord Patten of Barnes, in which he called the sentencing review “a serious error on the part of Hong Kong’s Government” and a “deplorable decision” was totally uncalled for, had little justification and showed a misunderstanding of the system here in Hong Kong.

Of course, feelings are running high. There are ideals at stake and many people, myself included, are sympathetic to the cause. So I can understand the emotional reaction, but I cannot agree with it, not when the facts of the case are considered. No one likes to see young people, especially first-time offenders, incarcerated, but these were serious offences. Was there political interference in the arrest, prosecution, trial and imprisonment of Alex Chow, Nathan Law and Joshua Wong? A detached, dispassionate review of their case leads me to conclude the answer is a resounding no.

To underscore this point, I would urge people to consider the more recent Court of Final Appeal judgment concerning the case of lawmakers-elect Yau Wai-ching and Sixtus Baggio Leung, who were disqualified from the Legislative Council after taking their oaths improperly. In explaining why it had rejected Yau and Leung’s attempt to appeal against their disqualification, the Court of Final Appeal reiterated that the power for Beijing to interpret our mini-constitution, the Basic Law, was only “in general and unqualified terms”.

A key part of this case – another emotive court drama that captured global attention – had centred on an interpretation of the Basic Law issued by Beijing. Some critics saw it as an attempt to undermine our Judiciary. But the Court of Final Appeal judges – Chief Justice Geoffrey Ma and Permanent Judges Roberto Ribeiro and Joseph Fok – ruled that lower courts would have come to the same conclusion to strip the duo of their seats even without Beijing’s interpretation. While acknowledging the case had “evoked strong expressions of opinion and comments”, the judges emphasised they would consider only legal issues and steer clear of politics.

Finally, I would direct readers’ attention to another Court of Appeal judgment, issued two days before the one concerning Chow, Law and Wong. This involved 13 protesters who, as part of a wider group, had stormed the Legislative Council in June 2014 over a controversial Government development project, resulting in violent clashes with police, injury to a security guard and more than HK$400,000 worth of damage to LegCo facilities.

The 13 were convicted of unlawful assembly by a lower court and given community service orders. The Secretary for Justice applied for and was granted a sentencing review. The review was conducted before the same three Court of Appeal judges who subsequently presided over the hearing involving the pro-democracy trio. And the judges set aside the original community service orders and imposed jail sentences of between eight and 13 months.

Where was the international hue and cry on this occasion? After all, this case had many parallels with the one involving Chow, Law and Wong. But it was different in at least one respect: it did not feature high-profile political activists engaged in a political protest. Take politics out of the equation and, in both instances, we are left with criminal acts resulting in appropriate sentences.

Two days ago, the Court of Appeal judges issued their reasons for judgment in the case of the 13 LegCo protesters. They said: “Although this was not the most serious case of unlawful assembly, charging at the LegCo where a meeting was ongoing, on such a large scale is unprecedented. This demonstrates the seriousness of the offence and the respondents’ total disregard of public order and safety. Charging at the LegCo with violence is an aggravating factor.”

In concluding the court must give greater weight to punishment and deterrence and less weight to the defendants’ personal circumstances and motives, the judges added: “Plainly, the appropriate sentence in the present case must be immediate imprisonment.” Clearly, if there is one thing the Court of Appeal judges cannot be accused of, it is inconsistency.

I have seen this great city change in multiple ways, but one constant has always been an independent Judiciary. Having closely followed these recent high-profile court cases, I am convinced we still have one.