Civil disobedience is not a defence for a criminal charge, District Court Judge Johnny Chan said in his verdict against nine leading Umbrella Movement activists on Tuesday. Each of the activists was found guilty of public nuisance charges in relation to the 79-day protests in 2014, and could now face up to seven years behind bars.

The District Court judge ruled that, for the charge of public nuisance related to blocking public places and highways, the prosecution must prove the legal element of “not warranted by law.”

Chan Kin-man. Photo: Ezra Cheung.

Chan Kin-man, one of the convicted co-founders of the Occupy movement, had argued that the protests were an act of civil disobedience. The concept refers to the act of intentionally breaking laws to display their injustice.

But Johnny Chan said that, although the concept of civil disobedience is recognised in Hong Kong, civil disobedience does not constitute a defence against any criminal charges: “Even if a defendant is prosecuted for an offence committed in the course of civil disobedience, civil disobedience is not a defence in law,” Chan wrote.

“It is no function of the court to adjudicate the merits of the political cause behind the civil disobedience in the trial. The court should focus on the ingredients of the offence and the issues in dispute.”

Photo: Ezra Cheung.

Chan also rejected the defendants’ argument that the prosecution should refrain from bringing the common law offence of public nuisance – which has much heavier penalties  – when there are more appropriate statutory offences.

“In my judgment, whether the prosecutor can ‘beat a convicted defendant with a bigger or extra stick’ in the event of conviction depends on the findings of the court on the culpability of a convicted defendant,” he wrote. “It cannot be said just because a charge of public nuisance is used, a prosecutor can use a bigger or extra stick to beat the defendant in the event of a conviction.”

“In my judgment, if the Prosecution takes the view that the case it seeks to prove reveals a level of culpability so high that calls for a punishment that no appropriate statutory offence can meet, the Prosecution is entitled to use the common law offence of public nuisance. Whether there is sufficient evidence to prove the charge and whether the facts proved revel the level of culpability that the Prosecution contends are of course different matters.”

From left: Chu Yiu-ming, Chan Kin-man, Benny Tai. Photo: Holmes Chan/HKFP.

‘Chilling effect’

The three co-founders of the Occupy movement were charged with an extra count of conspiracy to commit public nuisance.

In the judgment, Chan said it cannot be reasonably argued that a charge of conspiracy to cause public nuisance would generate a chilling effect within society.

“I do not see how the offence of conspiracy to cause a public nuisance could have the undesirable effect of curtailing or suppressing civil disobedience at its formation stage or suppressing human rights as the defendants allege,” he wrote.

See also: In Full: The testimony of protest organiser Chan Kin-man at the trial of the Umbrella Movement 9

The judge said the trio’s goal of introducing genuine universal suffrage by occupying roads was unrealistic.

Johnny Chan. File

“It is naïve to suggest that a concession to introduce the form of universal suffrage advocated by the Trio could be made by the government overnight with a click of fingers, it is equally naïve to suggest a mass protest of tens of thousands of people could be dispersed overnight even if a positive response were to come from the authorities,” Chan wrote.

“There is no basis to suggest that should tens of thousands turn out to Occupy Central, ‘that mass expression of resolve was anticipated to have been sufficient to achieve the desired result and therefore removing any further need to cause further disruption in accordance with the proportionality principle’.”

The nine activists include legal scholar Benny Tai, sociology professor Chan Kin-man, reverend Chu Yiu-ming, lawmakers Tanya Chan and Shiu Ka -chun, ex-student leaders Tommy Cheung and Eason Chung, activist Raphael Wong and Democratic Party veteran Lee Wing-tat. They are set to be sentenced this week.

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. 

Kris Cheng

Kris Cheng is a Hong Kong journalist with an interest in local politics. His work has been featured in Washington Post, Public Radio International, Hong Kong Economic Times and others. He has a BSSc in Sociology from the Chinese University of Hong Kong. Kris is HKFP's Editorial Director.