Law & Crime Opinion

Punishment, deterrence and the Joshua Wong case: How the Hong Kong gov’t turned defeat into victory

Many lawyers are good writers – they get a lot of practice – and it seems The Chief Justice of the Court of Final Appeal, Geoffrey Ma, is one of them. His account of the CFA’s decision on the three young men jailed for their part in the disorders which led to the Occupy movement is not difficult reading. It can be found here.

Readers who plough through this will not only be better informed about the case; they will also be in a very small minority.

A certain amount of persistence is required – there are 131 paragraphs – but, for this, you get an admirably concise history of the case, a detailed account of the facts, a tour of the relevant law, some surprising conclusions and the final outcome: the three defendants go free.

Geoffrey Ma

Geoffrey Ma Tao-li. Photo: GovHK.

A surprising number of comments seem to have been based on – to put it kindly – media reports. This is generally a mistake. Media reports are produced in a competitive rush. This is not conducive to meticulous care over details.

Other comments seem to be inspired by a desire to make defeat look like victory.

Let us start with the defendants, who had the advantage – or perhaps the disadvantage – that they had heard the oral version in court. The consensus among the three seemed to be that the overall effect of the judgement would be to discourage future protesters.

This seems a bit unfair. It will certainly, one hopes, discourage future violent protesters. The Court of Appeal’s “guidance”, in its surviving form, is not a tariff, the CFA says, because “the offence of unlawful assembly does not lend itself to a tariff approach to sentencing”.

What we are left with is the ripely ambiguous suggestion that when considering a large-scale disorder involving violence the sentencing judge should give proportionately more attention to the matters of punishment and deterrence. Many judges, I suspect, will regard this as a description of what they do already.

Persistent protesters are perhaps right to be paranoid, but it is by no means certain that, as many comments assume, a protest of a similar nature to the one in this case which occurred now would attract jail terms. Cases, and judges, all vary.

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Police surrounded student protests at the Civic Square on September 27, 2014. File Photo: Occupy Central with Love and Peace.

Persistent protesters also need to bear in mind that the essence of civil disobedience is accepting punishment, not escaping it. The CFA is surprisingly, at least to me, open-minded about civil disobedience: “the concept of civil disobedience is one which is recognisable in any jurisdiction respecting individual rights, including Hong Kong.”

They even include a quote, albeit from an overseas judge, which includes “we might feel that although we sympathised and even shared the same opinions, we had to give greater weight to the need to enforce the law,” which is an interesting way for a judge to look at it.

So I do not think this judgement presages a new wave of repression. It increases the need for attention and planning in the approach to protests, stressing non-violence and avoiding gratuitous inconvenience to bystanders. Who will argue against that?

Well, perhaps the government spokesman who produced a – sensibly anonymous – press release after the announcement.

department of justice

The Department of Justice. Photo: GovHK.

The statement “welcomed” the message that “unlawful assemblies … will not be condoned” and devoted a whole paragraph to the notion that “little weight will be given to the mitigation that the offending act was committed in the exercise of constitutional rights”. It then provided a lengthy and rather biased version of “the facts”.

A concluding paragraph noted that “It can also be seen from paragraph 5 of the reasoning contained in the judgment of the CFA that the Court dealt with this case solely from the legal perspective.  Hence, suggestions that the application for review was politically motivated were totally groundless and misconceived.” But this does not follow at all. Clearly the court dealt with the case solely from the legal perspective. However the application for review did not come from the court; it came from the Department of Justice. So the suspicion of political motives remains alive and kicking.

The more so because the application for review seems to have been so ill-founded. Clearly there are limits to the criticism which a judge may politely offer for an application which was approved by his brothers in the Court of Appeal.

But the Court of Appeal itself gets a considerable ticking off. The judgement goes through the Court of Appeal’s five complaints about the magistrate’s approach to sentencing and finds them all groundless: “In these circumstances, the applications for review of the particular sentences imposed on the appellants should have been refused.”

And that is that.

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Photo: In-Media.

Readers who are enjoying the rare spectacle of three judges getting a public pasting from their superiors will hope that we are not going to stop at this point. And the judgement does not disappoint.

Is the Court of Appeal allowed to infer or add to or change the findings of fact in the original trial? No. Unfortunately in two places it did so.

On the question whether the Court of Appeal should have applied its guidance to the case of the three men before it, the answer is again “no”.

“As a reflection of the principle of legal certainty, it is settled law that the sentence for an offence should be in accordance with the practice prevailing at the time of the commission of the offence.

“The principle that an offender is to be sentenced on the existing or prevailing guideline or tariff of sentence existing at the time of the commission of the offence reflects the protection against retroactive criminal penalties conferred by Article 12(1) of the Hong Kong Bill of Rightswhich relevantly provides:’… Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed.’”

Joshua Wong Alex Chow Nathan Law

Joshua Wong, Alex Chow, Nathan Law. Photo: In-Media.

The Court of Appeal’s “guidance” on sentencing is warmly received, but there is a personal brickbat for its vice president, who included in his judgement matters which had not been shown in evidence. “…Not a proper basis for sentencing.”

Then we come to the matter of Section 109A of the Criminal Procedure Ordinance. This provides that the courts should, if at all possible, avoid sending people under the age of 21 to prison. At the time of his offence Joshua Wong was 17.

The Court of Appeal seems to have misunderstood a point made by Joshua Wong’s counsel and mistaken it for some kind of waiver of his rights. The CFA is not impressed by this, referring to the court’s “duty as the sentencing court to consider all non-imprisonment sentencing options and not a matter for counsel.” The Court of Appeal, it concludes, “erred in not following the requirements of Section 109A.”

Well, it seems there is something for everyone here, though the most lavishly rewarded will be those who said that the Court of Appeal had made a frog’s breakfast of the case.

There is perhaps not much for the government to enjoy. After all the issue at the bottom of all this was whether the three men concerned would go to jail for substantial terms. And that is settled. They won’t. The government was, as we used to say in rowing circles, pissed on from a great height.

This brings us to Carrie Lam’s attempt to turn defeat into victory. This consisted of extensive quotes from the official reaction – welcoming guidelines and downgrading of constitutional excuses – and the additional offering that the court “had not said the case should never have been brought”.

That is true. But it’s rather a feeble defence, like saying “Yes, I beat my wife, but only with a hairbrush.”

carrie lam

Chief Executive Carrie Lam. Photo: GovHK.

Actually it is not the role of the Court of Final Appeal to assess the government’s conduct of its case, and it would have been very surprising if they had said anything of the sort. On the other hand diligent gleaners in the judgement will find that the Department of Justice was seeking a violation of a Common Law principle, the Bill of Rights, and Section 109A. What do they do for an encore?

Anyway, as the CFA did not say the case should never have been brought, let me say it. This whole ordeal was caused because the government was not content with new sentencing guidelines, which it could have had as a matter of routine if it had accepted that they would not be applied retrospectively. It wanted blood. It wanted the three defendants put away.

As a result they were subjected to a great deal of anxiety, expense and wasted time, and they did all spend some time in prison.

Now people in the law and order business need to develop a certain professional detachment from the personal consequences of their work, just as do surgeons, army officers and even the practitioners of some of the more carnivorous forms of journalism. If they worry about mistakes too much they will go mad.

The rest of us, however, can see that throwing three young men into jail on grounds which turn out to be legally fallacious is a serious breach of the victims’ human rights and a gross piece of cruelty.

In some jurisdictions the minister concerned would be expected to resign. But Rimsky Yuen has done that already. In some jurisdictions the victims could expect an apology. Not here. I expect the Liaison Office will get one, though. “We tried to follow your instructions, (bangs head on floor) but the judges…”


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Punishment, deterrence and the Joshua Wong case: How the Hong Kong gov't turned defeat into victory