Ousted lawmakers Yau Wai-ching and Baggio Leung, along with three of their assistants, have been sentenced to four weeks in jail for participating in an unlawful assembly during a chaotic episode at the legislature in 2016.
They were charged with participating in an unlawful assembly and an alternative charge of forced entry for attempting to barge into a meeting after Yau and Leung were barred from entering to re-take their oaths as lawmakers.
After sentencing, Yau Wai-ching and assistants Yeung Lai-hong and Chung Suet-ying gave up on their appeals, while Baggio Leung and assistant Cheung Tsz-lung said they intended to proceed with theirs.
Leung is appealing his conviction and sentence, while Cheung is appealing his conviction. Both will be released on bail.
Yau submitted three mitigation letters from herself, her Chinese history teacher in secondary school, and a supporter named Jacky Lim.
At the Kowloon City Magistrates’ Courts on Monday, Acting Principal Magistrate Wong Sze-lai said she considered mitigation from the defendants, past cases, and a probation report from the third defendant in handing down the sentence.
She cited the Court of Final Appeal’s ruling on activist Joshua Wong’s case in deciding that violence is not acceptable, regardless of political reasons, and a deterring sentence must be given.
”Timeline of Yau and Leung’s disqualification“
- On November 2, 2016, the pair tried to barge into a meeting room following Legislative Council President Andrew Leung’s decision to bar them from attending meetings. At the time, the duo was facing a judicial review challenge filed by the government contesting the validity of their oaths of office as lawmakers.
- After the government filed the challenge, Beijing issued an interpretation of the oath-related provision of the Basic Law. High Court judge Thomas Au subsequently ruled that the oaths of Yau and Leung were invalid, thereby disqualifying them from the legislature.
- Two weeks after the ruling, the Court of Appeal upheld the pair’s disqualifications, saying that Beijing’s interpretations declare “what the law has always been” and therefore have a retroactive effect dating from 1 July 1997 when the Basic Law came into operation.
- Last August, Hong Kong’s highest court rejected the duo’s appeal application on the basis that the grounds under which leave was sought were “not reasonably argued.”
Magistrate Wong said the case was a serious one and the defendants acted in coordination with prior planning. She said a jail sentence must be given as the duration of the protest was not short and violence causing injury was involved. The chaos left six security guards injured and hospitalised.
Wong further added that Leung and Yau’s actions harmed the legislature’s dignity, and did not accept the five defendants’ mitigations for reduced sentences.
The defence said during the trial that, despite Beijing’s interpretation, the pair still had the right to enter the meeting room at the time of the incident.
They argued that criminal offences have no retrospective effect under Article 12 of the Bill of Rights Ordinance, suggesting that the duo should not be held criminally liable for what was legal at the time.
During the verdict hearing in May, Wong said that parts of the two ex-lawmakers’ defence were contradictory and illogical. She rejected their version of events – that they had acted spontaneously and were only trying to leave the scene.
She said that, even if they genuinely believed they were still lawmakers at the time, it was not a valid reason to excuse them from criminal liability.
Under the Public Order Ordinance, it is an offence for three or more people to act together in a disorderly manner with the intent to cause others to fear that a breach of the peace will be committed. The offence is punishable by three years in prison on summary conviction.
Speaking to reporters after the sentencing, Baggio Leung said he was disappointed by the ruling and cannot accept the reasoning behind his conviction.
“The ruling is a complete mistake,” he said. “It did not consider the background of the incident.”
“The Public Order Ordinance is very outdated and very vague. It is very dangerous if the court does not defend [the rule of law].”
Asked about Yau’s decision to give up her appeal, Leung said his fellow Youngspiration activist did so as her parents were ill.
Two UK politicians criticised the sentencing, with Sir Malcolm Rifkind QC, the former foreign secretary, calling the prison sentences “deeply disturbing” in a press release sent out by NGO Hong Kong Watch.
Benedict Rogers, the NGO’s chair, accused the government of using the law to intimidate opponents, disqualify lawmakers, and limit freedom of expression. “It is symbolic that this has taken place on the anniversary of the Tiananmen Square Massacre because these politicised cases have a chilling effect on the pro-democracy movement, forcing people into self-censorship and silencing opposition.”
Crossbench peer Lord Alton of Liverpool said: “Imagine if a Member of Parliament were sent to jail for staging a protest inside Parliament? Sentencing elected lawmakers to jail for supposedly conducting an ‘illegal’ assembly inside the legislature is a major overreaction.”
Update 13:00: This piece was updated to reflect the fact that three of the defendants decided they would no longer appeal.