Basically, these are the people who in disciplinary circles would be labelled “ringleaders.” The charges were some interesting legal antiques involving “inciting to commit a public nuisance,” and even “inciting to incite a public nuisance.” All this has been much commented on. Having been convicted, the defendants made extensive mitigation speeches, readable on HKFP. The judge deferred sentencing to next Wednesday pending reports.
Lurking in reports of the proceedings was an interesting legal issue. All or most of the defence lawyers commented, it appears, on the length of time taken by the prosecution to charge and try the defendants, as a factor which should mitigate the resulting sentences.
The delay was as follows: the offences took place in September 2014. Some of the defendants were not arrested until January 2017 and charged a further two months later. There followed a further two-year delay before the trial.
This produced a response from prosecuting counsel David Leung Cheuk-yin. Why he was allowed to offer this is a bit of a puzzle. Defence mitigation usually comes last, just before sentencing. The prosecution has had plenty of opportunities to express its bloodlust. Judge Johnny Chan would have given his reputation for fearless independence a timely boost if he had told Mr Leung to shut up.
However, this did not happen. Mr Leung proceeded to say that the delay in prosecution should not be considered a factor in sentencing and “the defendants should not benefit from it.”
Mr Leung explained this long delay as being because “the police arrested 1,003 people in relation to the movement and had to go over 335 research reports, 300 witness statements and 1,133 videos.”
This is a little strange. Since “incitement” is a matter of public speech it is difficult to believe that 335 “research reports” were really necessary. Surely a few selected videos would have sufficed? As a taxpayer one must wonder if this huge investigative effort was worth it when most of the defendants had effectively volunteered to plead guilty to unlawful assembly in 2014, while Occupy was still in progress.
Leaving aside the merits of Mr Leung’s claims to Stakhanovite levels of investigative enthusiasm, though, I would like to point out that legally it is not up to the defence to prove that it has been disadvantaged by a delay in bringing criminal proceedings. The delay is in and of itself a violation of their human rights.
As one of the standard textbooks puts it: “According to article 14 (3)(c) of the International Covenant and articles20 (4)(c) and 21 (4)(c) of the respective Statutes of the International Criminal Tribunals for Rwanda and the former Yugoslavia, every person facing a criminal charge shall have the right “to be tried without undue delay.” In the words of article7 (1)(d) of the African Charter, article 8(1) of the American Convention and article 6(1) of the European Convention, everyone has the right to be heard “within a reasonable time.”
This point is also recognised in the Department of Justice’s own Code for Prosecutors, which says that “The prosecutor must be alert to the rights of an accused which are relevant to the prosecution process, including equality before the law, the rights to have confidential legal advice, to be presumed innocent, and to have a fair trial without undue delay.” These rights are attributed to Basic Law Articles 25, 35 and 87, and Bill of Rights Articles 10 and 11.
Of course, this is because a delay is intrinsically hard on the defendant. His or her chances of mounting a successful defence are likely to diminish as memories fade and witnesses die or disappear. The prospect of an upcoming trial is itself stressful and disruptive of one’s normal enjoyment of life. So how long is a “reasonable time”?
Over to the United Nations Committee on Human Rights, of which it is reported: “The Human Rights Committee has examined numerous… cases involving alleged violations of this right… In one case, the Committee concluded that a delay of 29 months from arrest to trial was contrary to article 14… A delay of two years between arrest and trial was also considered to violate article 14. The judicial authorities were… responsible for the unreasonable delay of the proceedings contrary to article 6 in the case of Yagci and Sargin… In all, the proceedings lasted a little less than four years and eight months.”
The European Court of Human Rights has spent an astonishing 30 per cent of its caseload dealing with violations of the right to a speedy hearing: “it is for the Contracting States to organise their legal systems in such a way that their courts can guarantee to everyone the right to a final decision within a reasonable time in the determination of his civil rights and obligations.”
After so many cases of this kind, the Court has developed the idea that states must also provide effective remedies for litigants or defendants subjected to unreasonable delays. These may include an arrangement in which “the length of proceedings had been taken into account when reducing the sentence in an express and measurable manner.”
The European Court examines each case on its merits and does not have a stated time limit. The Supreme Court of Canada is less timid. It “rejected the framework traditionally used to determine whether an accused was tried within a reasonable time under section 11(b) of the Canadian Charter of Rights and Freedoms and replaced it with a presumptive ceiling of 18 months between the charges and the trial in a provincial court without preliminary inquiry, or 30 months in other cases.”
Similar limits are operated in many American states, They require, for all but the most serious felonies, prosecutions to begin within three years of the offence.
In the UK the National Audit Office expressed concern in 2016 that the average waiting time between the first appearance before magistrates and the actual trial had increased by 23 per cent since 2010, and was now 132 days, or about four and a half months. This is an average and no doubt is sometimes greatly exceeded. I doubt, though, if these legal marathons commonly end with a plea from prosecuting counsel for inordinate length to be disregarded in sentencing.
Let us return to the Occupy nine and put their ordeal in an international perspective. Since the overall period between September 2014 (start of Occupy) and March 2019 (start of trial) was just short of five years it seems unavoidable that some of the defendants either were not charged until three years after the offence (which would let them off the hook in Oregon, etc) or were charged but not tried for 30 months (which would mean an automatic acquittal in Canada). We may also note that in countries signed up the European Convention on Human Rights a reduction of sentence to compensate for prosecutorial ponderousness is not only allowed but expected.
I suppose Mr Leung would say in his defence that the delay was unavoidable because of the complexity of the case and the number of defendants. The easy answer to that is that these features were both chosen by him. There was nothing inevitable about the decision to drag a legal blunderbuss out of its grave, or to point it at nine defendants simultaneously.
We must also note that the length of a case is not only a matter of legal complexity, the need to gather large quantities of evidence or the number of defendants. It is also controlled by the amount of resources and manpower devoted to the matter, and the degree of haste.
Consider a historic case from 1945: a new law, 24 defendants on war crimes charges. Evidence gathering could not really start until the war in Europe ended in May because before that the prosecutors had no access to Germany. Proceedings began in Nuremberg on November 20 and concluded in October of the following year. Speed can be achieved if it is wanted badly enough.
I suppose with so many offensive smells coming from this case the fact that it was pursued at a pace which was itself a violation of the defendants’ rights is rather a side issue.
Kong Tsung-gan‘s new collection of essays – narrative, journalistic, documentary, analytical, polemical, and philosophical – trace the fast-paced, often bewildering developments in Hong Kong since the 2014 Umbrella Movement. As Long As There Is Resistance, There Is Hope is available exclusively through HKFP with a min. HK$200 donation. Thanks to the kindness of the author, 100 per cent of your payment will go to HKFP’s critical 2019 #PressForFreedom Funding Drive.