The Court of Final Appeal yesterday ruled in favour of Joshua Wong Chi-fung, Nathan Law Kwun-chung and Alex Chow Yong-kang who appealed against their imprisonment verdicts, and sustained the initial community service and suspended prison sentences for them. They don't need to go back to prison to serve the remaining jail terms.
Chief Justice Geoffrey Ma Tao-li said in the judgment that the concept of “civil disobedience” is recognised in Hong Kong and if a defendant committed a crime “driven by his conscience” or out of his “sincere beliefs”, the court could take into consideration his“motives”. Chief Justice Geoffrey Ma also pointed out that it was appropriate for the Court of Appeal to say that, in the circumstances now prevailing in Hong Kong, it is now necessary to emphasise deterrence and punishment in large scale unlawful assembly cases involving violence, and it is consistent with its responsibilities for the Court of Appeal to provide guidance for sentencing matters.
The Court of Final Appeal eventually ruled to sustain the initial sentences on the trio as in their cases it is not clearly shown that imprisonment sentencing is the“only choice”, but also pointed out that in future all cases involving violence and large-scale unlawful assembly will be dealt with following the Court of Appeal's new sentence guidelines.
The ruling delivers such a message: although the behavour of Joshua Wong Chi-fung and the other two was violent, it was not necessary to imprison them. But similar cases in future will be given imprisonment sentences following the guidelines set by the Court of Appeal.
In regard to this ruling by the Court of Final Appeal, the Department of Justice issued a statement last night, pointing out that“The three defendants were charged because of their acts, not their beliefs, in forcing their way into the Forecourt of the Central Government Offices, resulting in the injuries of 10 persons.” The statement also welcomes the Court of Final Appeal's clarification that similar cases in future involving violence, even a relatively low degree, will not be condoned and may justifiably attract sentences of immediate imprisonment.
The Department of Justice reiterates in its statement that Joshua Wong and the other two were convicted not because they exercised their civil liberties, but because of their disorderly, intimidating, or provocative conduct at the time which constituted the offence of unlawful assembly and contravened the law. The incident involved violence and “no society which truly respects the rule of law would allow the use of violence.”
Having convicted Joshua Wong and the other two defendants after trial, the Magistrate Court initially sentenced them to community service order and suspended imprisonment respectively. Not satisfied, the Secretary for Justice appealed against these sentences, and the Court of Appeal sentenced them for immediate imprisonments. The Court of Final Appeal yesterday ruled to sustain the original sentences. From a judicial viewpoint, this case is closed, and will not be contested.
However, society and citizens may hold a different view. On that day when the incident happened, Joshua Wong, Nathan Law and Alex Chow took the lead to climb over the fence to force their way into the Forecourt of the Central Government Offices, and also called through loudspeakers other participants in the assembly to join their action. As a result they were charged for taking part in or inciting others to take part in the unlawful assembly. Such facts were clearly presented in the trials at three levels. This proves the particulars of offense are solid and conclusive, and it is beyond doubt that they must be subject to criminal liability.
The community service order and suspended imprisonment sentences initially given to the trio by the judge at the Magistrate Court had caused an uproar in society. The Secretary for Justice later appealed against the sentences and the original verdicts on them were changed to imprisonment. Various social sectors all regarded the imprisonment sentences reasonable and legal, which the trio deserved and which also delivered a clear message to society. But the Court of Final Appeal yesterday “let bygones be bygones”, stressing that there was no clear guidelines for courts before the trio's case to “weigh” “civil disobedience” in unlawful assembly and violent behaviour and letting the trio go. Citizens have no choice but to keep this for future reference and see how similar cases will be dealt with. Citizens respect judicial independence but more hope the role of judiciary and rule of law as a pillar for stabilising society and distinguishing between right and wrong won't be shaken.
7 February 2018
