Just deserts: Condign punishment a fitting end to the era of lawlessness

On May 28, 10 well-known defendants, who had earlier pleaded guilty to organizing an unauthorized assembly on Oct 1, 2019, received their just deserts, and were sentenced to terms of imprisonment which ranged from 14 to 18 months (DCCC 534/2020). Two of them, however, Richard Tsoi Yiu-cheong and Sin Chung-kai, had their sentences suspended, because of mitigating factors, including their limited role in the offense and their public service record. 

Those sentenced to immediate imprisonment were Jimmy Lai Chee-ying, Albert Ho Chun-yan, Lee Cheuk-yan, Cyd Ho Sau-lan, Leung Kwok-hung, Yeung Sum, Avery Ng Man-yuen and Figo Chan Ho-wun. In passing sentence, Judge Amanda Woodcock noted that the defendants had consciously decided to break the law and challenge public order during a volatile period. Although the defendants had called for a “non-violent procession”, this was “naive and unrealistic”, because what was happening on a daily basis at that time was quite the opposite. Indeed, petrol bombs were thrown along or near the procession route, and the video evidence showed that other acts of criminal damage, arson and violence were also occurring.

If the defendants thought their wealth, status, and foreign connections could shield them from the consequences of flouting the law, they were sorely mistaken. The law is above them, not vice versa, and equality of treatment is a hallmark of Hong Kong’s legal system. Indeed, once a law is enacted it applies to everybody, including those who dislike it, and a civilized society cannot tolerate cherry-picking. As Woodcock told the defendants, “Actions have consequences for everyone, irrespective of who they are.”

If the defendants thought their wealth, status, and foreign connections could shield them from the consequences of flouting the law, they were sorely mistaken. The law is above them, not vice versa, and equality of treatment is a hallmark of Hong Kong’s legal system. Indeed, once a law is enacted it applies to everybody, including those who dislike it, and a civilized society cannot tolerate cherry-picking

The offense of organizing an unauthorized assembly is a serious one, punishable under the Public Order Ordinance with up to five years’ imprisonment (Sect.17A). Although, in the past, there were cases in which fines were imposed, these clearly had no effect, and the offense has proliferated in recent times. As there were many people who thought they could defy the law and get away with it, the offense provisions were being brought into disrepute, and the dangers to public safety were increasing. It became obvious that the courts had to enforce the law far more vigorously, and this meant that they had to impose sentences which would not only punish particular offenders but also deter others.

Once the case concluded, one of the defendants, Sin Chung-kai, complained to the media that the sentences were “unprecedented”, with previous cases having only attracted a fine or a community service order. Since, however, merciful sentences in the past had provided protesters with a green light to future offending, Woodcock’s duty was clear. If a court, despite the prevalence of a crime, imposes derisory sentences, it not only weakens the criminal law but also undermines law enforcement efforts, and more realistic sentences are unavoidable.

As is customary these days, hostile foreign actors raised their voices immediately as soon as the sentences were imposed. As usual, none was more imbecilic than the serial fantasist Benedict Rogers, who is London-based. He runs Hong Kong Watch, a sinister propaganda outfit which peddles fallacies about China and whitewashes the excesses of anti-China forces operating in Hong Kong, regardless of their crimes. Rogers, who describes criminal fugitive Ted Hui Chi-fung as his “hero”, and hopes to see the notorious China-basher Mike Pompeo in the White House one day, announced that “with sentencing going from what was previously a fixed-penalty fine to now over a year in jail, Beijing is seeking to make the cost of peaceful protest in Hong Kong severe”. 

As always, Rogers, a barrack-room lawyer par excellence, was talking through his hat. The defendants were not imprisoned for holding a peaceful protest, but for organizing a public procession which endangered public safety, and without the necessary clearance from the police. As the International Covenant on Civil and Political Rights makes clear, the right of peaceful protest is not absolute, and can be restricted where necessary on various grounds, including public safety, public health, and the rights and protections of others (Art.21). Such limitations, if imposed “in conformity with the law”, as they are in Hong Kong, are recognized as legitimate in most, if not all Western countries, yet Rogers, who has turned hypocrisy into an art form, only ever singles out Hong Kong for complaint.

As for Rogers’ ludicrous claim that “Beijing” played a part in the prosecution, this shows his capacity for self-delusion and misleading others is boundless. Under the Basic Law, the Department of Justice controls criminal prosecutions “free from any interference” (Art.63), and, given that this was an open-and-shut case, its prosecutors would have had no difficulty in concluding that prosecutions were appropriate. The sentence for organizing an unauthorized assembly was, moreover, never “a fixed-penalty fine”, and the courts have always enjoyed a wide sentencing discretion. It is, moreover, fundamental to criminal justice, in both Britain and Hong Kong, that sentences “take their flavor” from the maximum penalty prescribed by law, in this case five years’ imprisonment, and that, if previous sentences have not worked, the courts impose severer punishments. 

In 2019-20, Hong Kong faced an insurrection which sought to topple its government, paralyze its legislature, and destroy the “one country, two systems” policy. The insurrectionists received wide support, which took various forms, from within the protest movement itself, as well as from hostile forces elsewhere. Anybody involved, whether directly or indirectly, in protest-related criminality must, therefore, expect to face condign punishment. Although those who organized unauthorized assemblies may not be as culpable as those who attacked the police with petrol bombs, brutalized mainland visitors, or torched the train stations, they nonetheless contributed to a climate of lawlessness in which legal norms were trashed and fanatics walked tall. Their time in the sun, however, is now over, and the Department of Justice deserves full credit for helping to bring this about.  

Between March 14, 2020, and Feb 25, 2021, the secretary for justice, Teresa Cheng Yeuk-wah, invited the Court of Appeal to review the sentences imposed in 13 protest-related cases. This was because the trial courts had imposed a succession of what she believed were manifestly inadequate sentences. Thereafter, the Court of Appeal agreed that the sentences were indeed too lenient, and 15 defendants saw their original sentences overturned and replaced by severer punishments which adequately reflected their culpability. In consequence, the clear message has gone out that appropriate sentences should be imposed in all cases of this type, and those who challenged the rule of law are now being taught the lessons their conduct so richly deserves.   

Although the sentencing of offenders is rarely easy, the appellate courts have now set the parameters in protest-related cases, and it has become a lot easier than it was. Anybody complicit in these crimes, whether or not involving violence, must expect to face the music, and claims to leniency will not lightly be entertained. Justice now has the upper hand, and everybody must understand that the era of lawlessness is finally over.    

The author is a senior counsel, law professor and criminal justice analyst, and was previously the director of public prosecutions of the Hong Kong SAR.

The views do not necessarily reflect those of China Daily.