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Tuesday, February 13, 2018, 11:19
Reform should come after judgment on ‘Occupy’ trio
By Tony Kwok
Tuesday, February 13, 2018, 11:19 By Tony Kwok

Tony Kwok finds logic for overturning three activists’ prison terms mystifying and calls for a more rapid administration of justice

I wonder how many Hong Kong citizens would have the time and professional legal knowledge to read the recent Court of Final Appeal (CFA) judgment on the appeal by the trio of young political activists Joshua Wong Chi-fung, Nathan Law Kwun-chung and Alex Chow Yong-kang against the Court of Appeal (CA) decision on their imprisonment. It comprises 69 pages! If the judiciary is keen to educate the public on the importance of the rule of law, they should consider issuing an executive summary in laymen’s language to help the public understand the rationale of the law, rather than relying on the media, which inevitably is skewed toward their respective political views.

The long judgment came up with two simple conclusions. Firstly, it endorsed the CA’s sentencing guideline that “any unlawful assemblies involving violence should attract prison sentence”. Honestly, this is common sense, as it would be unthinkable otherwise in any common law jurisdiction. If there is any credit, it should go to the three honorable Justice of the CA — Messrs Yeung, Poon and Pang — who have the moral courage to speak up against the wave of aggressive opposition forces.

Secondly, the CFA decided to quash the prison terms laid down by the CA and reinstated the community service sentence imposed by the trial magistrate, Cheung Tin-ngan. It is obvious the majority of the public found this decision most perplexing and ridiculous; some considered it more a political than a legal decision. 

I therefore took the time to study the judgment and found the main argument for quashing the CA’s decision was in paragraph 97-106 (E2 section) addressing the subject: “Did the Magistrate err in principle or impose manifestly inadequate sentences.”

The CA said yes, citing five solid grounds to justify their conclusion, but the CFA in their mystifying wisdom rebutted every one in their judgment. For example, in ground No 1, while CA opined that the magistrate did not consider the factor on deterrence, CFA concluded the magistrate “was plainly aware of the factor of deterrence in any sentence ... It would be surprising if any court in Hong Kong passing sentence on a convicted person did not consider the factor of deterrence ‘at all’ as the Court of Appeal concluded.” In other words, as long as the magistrate said so, she has discharged her obligation. This seems to be a game of words. But if we asked the public whether they believe community service for causing violence leading to the injury of 10 security guards has a deterrent effect, I doubt any would agree. 

The other ground for the CA’s verdict was that the magistrate gave too much weight to the appellants’ alleged remorse. CFA rebutted that with the reasoning: “The appellants gave oral evidence before her at trial and it was a matter for her to form a view as to the veracity and sincerity of their claims of remorse and as to the weight to be given to that factor.” Hence what CFA is saying is this is entirely up to the magistrate! But if the magistrate genuinely believed the trio displayed remorse, the public must regard her as extremely gullible; the trio has up to now shown no sign of remorse in their public statements and activities.

But the much wider ramification of the CFA judgment is to lay down the so-called principle of retroactive effect of sentencing guidelines, which means there is a great chance all other culprits convicted on the ongoing and future “Occupy Central” related cases can escape a prison sentence. This amounts to blanket immunity!

Such retroactive principle of sentencing is quite different from what I have perceived in corruption cases in the 1970s. Shortly after the Independent Commission Against Corruption was formed, many corruption cases that appeared before different courts were given a great variety of sentences. In the end, through an application for review of sentence lodged by the then attorney general, the then chief justice laid down a sentencing guideline that “any public servants convicted of bribery offence should normally attract immediate custodial sentence with a minimum 12 months imprisonment”. I was not aware at that time that this guideline would not be applicable to corruption offences committed before the guideline was issued. If so, there would no doubt be a public uproar on such absurd restriction, letting nearly all the then corrupt officials escape prison sentence! 

Justice Wally Yeung, vice-president of the CA, observed in the CA judgment that “there are some educated people who deliberately incite the younger generation to engage in illegal acts under the pretext of pursuing ideals, using the oxymoronic slogan of achieving justice by breaking the law”. Such comment was hailed as timely and received the much public endorsement. However, the CFA saw it fit to criticize such remarks, which was just an obiter dictum. 

However, there is admittedly a case of “double jeopardy” for the trio, as they had already served their original punishment of community service order before the appeal was heard. This indicates the snail’s pace of judicial proceedings in Hong Kong; it has taken nearly three years since “Occupy Central” to reach the final verdict. It is time for the judiciary to have a proper review, drawing on international best practice. One is to come up with a performance pledge of undertaking to complete all proceedings within a maximum period. Two would be to follow the United Kingdom’s establishment of a sentencing council; such a body would have given prompt guidelines for “Occupy” cases. 

The author is the honorary fellow and adjunct professor of HKU SPACE and council member of the Chinese Association of Hong Kong and Macao Studies. He is the former head of operations in ICAC and currently an international anti-corruption consultant.

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